London Underground Ltd v National Union of Rail, Maritime & Transport Workers
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROBERT WALKER,LORD JUSTICE DYSON,LORD JUSTICE ALDOUS |
| Judgment Date | 16 February 2001 |
| Neutral Citation | [2001] EWCA Civ 211 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | No: A2/2001/0299 |
| Date | 16 February 2001 |
[2001] EWCA Civ 211
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (GIBBS J)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aldous
Lord Justice Robert Walker and
lord Justice Dyson
No: A2/2001/0299
Mr J Hand QC and Mr N Giffin (instructed by Pattinson & Brewer for the appellants)
Mr D Griffith-Jones QC and Mr P Edwards (instructed by Frances Low, Legal Director for London Underground Ltd for the respondent)
Introductory
The National Union of Rail, Maritime and Transport Workers ("RMT") has about 7000 members employed by the group of companies which runs the London Underground railway system. RMT itself put the number employed by the four principal companies at about 6,929 in a series of letters dated 4 January 2001 and at about 7,222 in a series of letters dated 26 January 2000. It will be necessary to come back to these letters, which are at the centre of this appeal.
London Underground Ltd ("LUL") operates all underground train services in London. As part of its preparation for the proposed Public Private Partnership ("PPP") it has formed three wholly owned subsidiaries, InfraCo BCV Ltd ("BCV"), InfraCo JNP Ltd ("JNP") and InfraCo Sub Surface Ltd ("SSL"). BCV is responsible for maintenance, renewal and improvement of the Bakerloo, Central and Victoria Lines; JNP has the same responsibilities for the Jubilee, Northern and Piccadilly Lines; and SSL has the same responsibilities for the other subsurface lines in the system. BCV has a wholly-owned subsidiary, TMU (Acton) Ltd ("TMU") and SSL has a wholly-owned subsidiary, REW (Acton) Ltd ("REW"). LUL, BCV, JNP, SSL, TMU and REW are the claimants in these proceedings, and RMT is the only defendant.
RMT is recognised as having negotiating rights with LUL. It is one of four trade unions in that position, the others being the Associated Society of Locomotive Engineers and Firemen ("ASLEF"), the British Transport Operators Guild and the Transport Salaried Staffs Association. RMT and ASLEF are at present in dispute with LUL.
According to an affidavit sworn since the hearing by Mr Andrew Bindon, LUL's Head of Employment Relations and Partnership, the approximate numbers of employees employed by the six claimant companies are 11,200, 2000, 1,600, 1,800, 60 and 220 respectively, making a total of a little under 17,000, of whom a little over 40 per cent are RMT members. The employees, including RMT members, are spread between a large number of different workplaces and between several different categories of work. Mr Bindon has deposed that
5. "RMT has members in a variety of different categories of our workforce, eg stations and revenue control, train staff, signal operations, and administrative, technical and operational managers. Additionally, LUL has over 40 different workplaces for station staff, over 20 different train depots, as well as separate locations for signalling operations."
LUL has what is known as a check-off arrangement with ASLEF, under which LUL will make a direct deduction from the salary of an employee who is a member of ASLEF and who wishes his union dues to be collected in this way. That means that LUL has up to date information about ASLEF members and their workplaces and work categories. There has been no check-off arrangement with RMT since 1995 and so, as Mr Bindon has deposed, LUL is not able to identify the number, category and workplace of its employees who are RMT members. There is a high turnover of staff in station grades.
As those who live or work in London are well aware, ASLEF and RMT called for a series of 24-hour strikes on the London Underground in furtherance of their trade dispute with LUL. The first commenced at 5.30pm on Sunday 4th February and continued until the following evening. The next is due to commence at 5.30pm on Sunday 11th February but has been called off.
On Wednesday 31 January the claimants made an urgent application to a judge of the Queen's Bench Division, Gibbs J, for an injunction restraining RMT (but not ASLEF) from backing the strike. The claimants claimed that it would be unlawful for RMT to back the strike because it had not properly complied with the preconditions laid down in Part V of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act"). Counsel and solicitors for RMT opposed the application but now say (no doubt with some justification) that they did not have much time in which to consider and answer the claimants' evidence. Indeed at the time of the hearing Mr Bindon's evidence had not yet been sworn, nor had the claimants issued a claim form or an application notice.
On 1st February Gibbs J made an order granting injunctions against RMT. Paragraph 1 of the order restrained the union from
"a)
inducing, procuring or persuading any of its members who are employees of the Claimants to break their contracts of employment with any of the Claimants by strike or other industrial action on [the three pairs of dates], in respect of the current dispute relating to safety concerns on London Underground;
b)
from interfering with the trade or business of the Claimants by inducing, procuring or persuading the Claimants' employees to break their contracts of employment as aforesaid;
Save insofar as the same is done with the support of a ballot or ballots the Defendant has held after the date of this Order using its best endeavours to comply with the requirements of the [1992 Act] prior to doing any of the acts referred to in a) and b)."
Paragraph 2 was a mandatory order requiring RMT by 5pm on 1st February to withdraw any direction or advice to its members calling for strike action and requiring RMT to give notice of this to every Branch Secretary of the union and require them to pass the news on to Local Representatives.
The judge refused permission to appeal. This court has before it an application by RMT for permission to appeal and to adduce new evidence, with the appeal to follow at once if permission is granted.
The statutory provisions
Part V of the 1992 Act relates to industrial action. The first section, s.219, protects action in contemplation or furtherance of a trade dispute from being actionable in tort, subject to various safeguards and conditions. These include (by s.219(4)) the requirements of s.226 (which requires a ballot before a trade union takes action) and s.234A (which requires notice of industrial action to be given to the employer). If those requirements are not satisfied, industrial action is (in the words of the statute) "not protected".
The relevant sections of the 1992 Act are ss.226, 226A, and 234A. The two last-mentioned sections were inserted (together with some amendments to s.226) by the Trade Union Reform and Employment Rights Act 1993. S.226A (2)(c) and the very similar provision in s.234A (3)(a) have been further amended (with effect from 18 September 2000) by the Employment Relations Act 1999 ("the 1999 Act"). These amendments are incorporated into the text of the relevant provisions which were set out by the judge in his judgment, and which must now be set out again.
Section 226(1) provides as follows:
"(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action -
(a) is not protected unless the industrial action has the support of a ballot, and
(b) where section 226A falls to be complied with in relation to the person's employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.
In this section 'the relevant time', in relation to an act by a trade union to induce a person to take part, or continue to take part, in industrial action, means the time at which proceedings are commenced in respect of the act."
Section 226A (1) and (2) provide as follows:
"(1) The trade union must take such steps as are reasonably necessary to ensure that -
(a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), and
(b) not later than the third day before the opening day of the ballot, the sample voting paper specified in subsection (3),
is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.
(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing
(a) stating that the union intends to hold the ballot,
(b) specifying the date which the union reasonably believes will be the opening day of the ballot, and
(c) containing such information in the union's possession as would help the employer to make plans and bring information to the attention of those of his employees who it is reasonable for the union to believe (at the time when the steps to comply with that paragraph are taken) will be entitled to vote in the ballot."
Subsection (3) of s.226A deals with the sample ballot paper. Then come subsections (3A) and (3B) added by the 1999 Act:
"(3A) These rules apply for the purposes of paragraph (c) of subsection (2) -
(a) if the union possesses information as to the number, category or work-place of the employees concerned, a notice must contain that information (at least);
(b) if a notice does not name any employees, that fact shall not be a ground for holding that it does not comply with paragraph (c) of subsection (2).
(3B) In subsection (3) references to...
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