Grunwick Processing Laboratories Ltd and Others (Plaintiffs) v Advisory Conciliation and Arbitration Service (First Defendants) Association of Professional Executive Clerical and Computer Staff (Second Defendants)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROWNE,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 29 July 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0729-3 |
| Docket Number | 1977 G. No. 1132 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 1977 |
[1977] EWCA Civ J0729-3
The Master of the Rolls (Lord Denning)
Lord Justice Browne and
Lord Justice Geoffrey Lane
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
(Lord Chief Justice)
MR. M. HEALD, Q.C., MR. S. McKINNON and MR G. NEWMAN (instructed by Messrs. Trower Still & Selling, Solicitors, London) appeared on behalf of the Plaintiffs (Appellants).
MR. D. HENRYS Q.C., MR. P. SCOTT and MR. P. GOLDSMITH (instructed by The Treasury Solicitor; appeared on "behalf of the First Defendants (Respondents).
MR. J. HAMPDEN INSKIP, Q.C. and MR. J. BURKE (instructed by Messrs. Brian Thompson & Co., Solicitors, Stanmore) appeared on behalf of the Second Defendants (Respondents).
THE MASTER OF THE ROUS: All have heard of the "Grunwick dispute", hat few know what it is about: at least I did not know myself until the evidence in this case revealed it. It is important that it should he known. The dispute and its consequences are the subject of an inquiry now being held by Lord Justice Scarman. But this cannot relieve this court of its responsibilities to determine the legal questions. These depend much on the facts raised on the pleadings and in the evidence. So I must state them so far as they are relevant.
THE FACTS
Many people like taking photographs, They buy films from chemists and send them to processing firms to be developed and printed, nearly always by post there and back. Kodak and Ilford are household names. Grunwicks are coming up.
All the processing is done by Grunwick at two factories in North-Vest London. They are very busy in the holiday season. In August last year they employed 429 people on a weekly basis in addition to 50 or more administrative staff. Most of the weekly wage-earners - 95 per cent of them, I believe were immigrants. Many had come from Uganda. They had been expelled by President Amin and given refuge here. They or their parents had come originally from the State of Gujarat in India. They spoke Gujerati as their mother tongue. Some had little knowledge of English. No doubt they regarded England, with its tradition of freedom, as heaven as compared with Uganda. They were very glad to get work here at Grunwick. That was three years ago. So far as the evidence goes, they were quite content with their pay and conditions of work: at any rate, there is no evidence to the contrary. Very few of them joined any trade union - just a handful of drivers earlyon joined the Transport & General Workers Union - but the rest did not join any trade union at all. There is nothing in our law to require them to do so. None of them were members of the union called APEX, Some of them were weekly workers. Some were regular employees, but many were students doing work in vacations. They were studying at our universities and polytechnics and took holiday work with Gunwick to earn more money.
On the 23rd August, 1976 the company had difficulty with one of the temporary students. He was given an instruction and refused to obey it. We have not been told any details. The company, however, thought it sufficiently serious that they dismissed him. Five others walked out at once in sympathy. I do not know if they were in a position to judge the rights or wrongs of his dismissal, but at any rate they took his side of it. By the end of the day 65 had walked out: 30 of them were students and 35 were regular employees. The number increased during the next few days until on the 31st August there were 137 altogether who had left work: 46 of them were students and 91 of them were regular employees.
Nine days later, on the 2nd September, 1976, the company dismissed all those who had walked out. They were entitled by law to do this see Simmons v. Hoover (1976) 3 Weekly Law Reports: so long as they dismissed all of them together without drawing a distinction between them. Later on 59 of them went to an industrial tribunal claiming compensation for unfair dismissal or reinstatement. But this claim was rejected for lack of jurisdiction, and they did not appeal.
As I have said, none of them had been members of any union. But soon after leaving some of them joined a tradeunion called the Association of Professional Executive Clerical and Computer Staff, APEX. At first only a few joined, tout as the days passed more of them joined the union: and a few of those who were still employed by the company also joined the union. In all about 110 joined APEX, of whom about 93 were those who had walked out and about 17 were those still employed by the company. When a vote was taken, as we know, on the 29th December, 1976, 91 of them voted in favour of recognition being granted by the union but about 17 did not. It may be that some of those 17 had become disenchanted with the union. At any rate, many of them had not paid their union subscriptions and were liable to be expelled for non-payment. For all practical purposes it may be said that those who walked out became members of the union, but those who stayed on at work for the most part did not.
Now at this time the trade union had no standing to negotiate with the company. But it sought to obtain it. It claimed recognition by the company. The company declined to recognise the trade union. That has given rise to all this dispute. It is in truth the whole dispute: Whether the company should recognise the trade union or not for the purposes of collective bargaining.
The trade union went to the new conciliation service set up by Parliament in the 1975 Act, called the Advisory Conciliation and Arbitration Service, ACAS. On the 15th October, 1976 the union lodged an application for recognition with ACAS. ACAS enquired into the claim. Eventually they made their Report on the 10th March, 1977 in which they recommended that the company should recognise the union for the purpose of collective bargaining. The company then on the 5th April,1977 issued a writ claiming a declaration that the Report was void and not binding on them. On the 12th July, 1977 the Lord Chief Justice dismissed the company's claim. She company now appeal to this court.
THE POLICY OF THE STATUTE
Such being the outline of the dispute how it arose I will turn to consider the 1975 Act. First the policy of the statute which was much discussed before us. As I read it, it proceeds upon this principle: that good industrial relations are to be built upon the twin pillars of collective bargaining and trade union recognition. The policy of the Act is to strengthen that principle and those two pillars by setting up a service called ACAS. ACAS is something like a court: not a court of law, but a tribunal. It is a judicial body. It has representatives on it of employers, trade unions and others. It is independent of the Government. Any independent trade union can lodge a claim with ACAS against an employer claiming that he should recognise it for the purpose of collective bargaining (that is section 11). ACAS is required by the statute to seek to settle the claim by conciliation. But if this fails, it is to hold consultations and make enquiries. Then, after all has been said and done, it has this power: it can recommend that an employer do grant recognition to the trade unions. If the employer does not comply with the recommendation if he refuses to negotiate with the trade union the trade union can take him before a superior body called the Central Arbitration Committee. The trade union can put forward a claim to this Committee that there should be an increase in pay or other improvement in the terms of employment. The Committee then, after a hearing, has powerto make an award for an increase in pay or other improvement. On that award being made, those terms become part of every employee's contract of service (section 16(7)). Thus by this route the employer can be compelled to make the increase in pay or whatever is awarded.
There are several respects in which this new machinery is most useful. An obvious case is where there are two rival trade unions each of which claims to be recognised for the purpose of bargaining on behalf of the men. The employer may be neutral: he does not mind which union it is, as long as one or the. other does not call a strike to enforce its claim. So let ACAS decide it.
The machinery is also no doubt useful when there is no trade union to represent the men and they ought, for their own good, to be represented by a trade union in any collective bargaining. An independent trade union can then take up their cause and ask ACAS to compel recognition: and, if the employer is recalcitrant, the Committee can compel recognition and also award an increase in pay.
But Parliament has been careful to see that the machinery is not used in a way which is unfair to the employer or to the workers themselves or contrary to their views. The statute contains safeguards against abuse. For instance, if only a small group of workers belong to a trade union and the majority are against it, then that trade union should not be able to enforce recognition contrary to the will of the majority. A good instance is the recent case of Powley before Mr. Justice Browne-Wilkinson on the 29th April, 1977. It concerned the Legal & General Assurance Society which had 5,000 employees. Some of them belonged to a staff association,but this was not an independent trade union. Others were members of an independent union called the Association of Secretarial, Technical & Management Staff (ASTMS). A recognition claim was referred to ACAS. In 1975 (before the...
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