Network Rail Infrastructure Ltd v National Union of Rail, Maritime and Transport Workers
| Jurisdiction | England & Wales |
| Judge | MRS. JUSTICE SHARP |
| Judgment Date | 01 April 2010 |
| Neutral Citation | [2010] EWHC 1084 (QB) |
| Court | Queen's Bench Division |
| Date | 01 April 2010 |
[2010] EWHC 1084 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Mrs. Justice Sharp Dbe
Mr. Charles Béar Qc And Mr. Paul Gott (instructed by Bircham Dyson Bell) for the Claimant
Mr. Frederic Reynold Qc And Mr. Oliver Segal (instructed by Thompsons) for the Defendant
Approved Judgment
MRS. JUSTICE SHARP:
This is an application by the Claimant, Network Rail, for an interim injunction to prevent strike action being called by the Defendant trade union, the National Union of Rail, Maritime and Transport Workers on the ground that the strike action is unlawful. There was a hearing yesterday afternoon before Flaux J who adjourned the matter to today to give the Union (the RMT) the opportunity to serve evidence. This was served on Network Rail last night and has been put before me this morning, together with further evidence in the form of a witness statement which was formulated during the course of the hearing today.
The strike action proposed is a national strike of signallers on Tuesday, 6 April 2010 to Friday, 9 April 2010 inclusive. It has been called pursuant to a strike notice served on 30 March 2010, that is two days ago. It is said by Network Rail, and not disputed by the RMT, that the strike will have the effect of preventing about 80 per cent of all rail services in the United Kingdom from running. This in turn will cause immense damage to the economy, to businesses depending on rail for freight and/or transport, to commuting workers and to a great many individual rail users.
None of these consequences, it is said by Network Rail, can be met by an award for damages which in any case is statutorily limited against a trade union of up to 100,000 members to £125,000 in any proceedings (see the Trade Union and Labour Relations Act 1992 (TULRA), section 22). That applies here as the RMT has 80,000 members.
It is said therefore by Mr. Béar QC, who appears for Network Rail, that the balance of convenience is overwhelmingly in favour of granting the injunction if it can establish a case of sufficient arguability. Regardless of the precise interlocutory test it is said that Network Rail is clearly able to establish that the proposed strike would be unlawful and therefore an interim injunction preventing the strike should be granted.
I have come to the conclusion today that the interim injunction should be granted. There is clear and convincing evidence, in my judgment, that the RMT would be unlikely to establish a statutory defence under the relevant legislation if this matter went to trial.
The time constraints are such that I give my reasons now.
The general background leading to this application is set out in the witness statement of Mr. Paul MacFarlane. Mr. MacFarlane is the Head of Human Resources, Operations and Customer Services for Network Rail.
Notice of the ballot for strike action conducted by the RMT (the Ballot Notice) was provided to Network Rail by a letter sent by fax dated 25 February 2010. The Ballot Notice (a) listed categories of staff who would be balloted and (b) enclosed a schedule of workplaces at which it was said members were to be balloted.
The Ballot Notice states that the strike action has been called because of a trade dispute concerning three matters: (a) the imposition of rosters; (b) the operation of Promotion, Transfer, Redundancy and Resettlement agreements concluded between Network Rail and the RMT; and (c) Network Rail's proposals towards members taking and protecting possession of the track (under a set of rules known as T3) to allow maintenance and renewal work to be conducted on the track.
RMT balloted a total of 4556 employees employed within Network Rail's operations functions. These are the operators or managers of Network Rail signal systems and associated operations (the Signallers). The RMT says safety considerations are behind the strike action. Network Rail disputes this and says it is satisfied that none of its proposals will have any effect on safety — indeed the Signallers are not subject to any proposal for staff reductions.
On 19 March 2010 the ballot was closed and RMT notified Network Rail of the ballot result by fax. The vote was a close one. Of the 4556 members stated by the RMT to have been the voting constituency, the result was as follows: (a) total votes cast, 3199; (b) total voting yes, 1705; (c) total voting no, 1481; (d) spoilt papers, 13. There was therefore a majority of 224 votes out of 4556 balloted, so that 113 votes cast differently would have altered the outcome.
On 24 March 2010 Peter Bennett, Network Rail's Director of Human Resources, sent a letter of the same date to Bob Crow (the General Secretary of the RMT) which contained detailed grounds of challenge to the lawfulness of any strike action (the 24 March letter). On 29 March 2010 Network Rail sent by hand detailed material which it said supported its detailed grounds of challenge, though by then the RMT had not challenged any of the factual complaints made in the 24 March letter.
On the afternoon of 30 March 2010 Network Rail received notification of strike action (the Strike Notice) from the RMT. On the same day it also received a response to the 24 March letter (the 30 March Response Letter). It is said by Network Rail that the Strike Notice repeated a large number of the errors it had highlighted in the 24 March letter, but corrected others. It is also said these corrections are significant for two reasons: first, because it is to be inferred that the corrections were made as a result of the errors being drawn to the attention of the RMT by Network Rail and, second, because the only material Network Rail relied on for this purpose was that which was already in the hands of the RMT. This in turn is significant when consideration is given to whether the information provided to Network Rail by the RMT was as accurate as reasonably practicable.
As has been widely reported, intensive efforts have been made to try and settle this dispute, most recently under the auspices of ACAS. The talks continued to 30 March 2010, but have (self-evidently) failed to produce any agreement.
The basic legal framework
The basic legal framework for this application is this. Strikes at common law are a breach of contract by the individual employee. To call a strike therefore is a tort —inducing breach with of contract. The tort however is immune from legal action provided various conditions set out in part V of TULRA are satisfied. (References hereafter to the relevant statutory provisions are to TULRA). If those conditions are not satisfied then strike action is unlawful, regardless of what might be described as the underlying merits of the industrial dispute between the parties. For this reason it is no part of my task to consider or address those merits in this judgment. Neither side has invited me to do so and I do not.
Both sides have drawn my attention to a recent decision of the Court of Appeal: MetrobusLimited v Unite [2009] EWCA Civ 829 [2010] IPR 173. In Metrobus the Court of Appeal identified what has been described as the policy considerations which underlie the relevant provisions in TULRA. If there is a trade dispute these provisions have within them restrictions aimed at ensuring democratic validity and a fair balance between employers and employees, the latter of which involves notification requirements imposed on the union. It is important to note that Metrobus establishes these requirements are proportionate and compliant with the European Convention on Human Rights. Reference in this context should be made to what is said by Lloyd LJ in the leading judgment in Metrobus at [53], [56] [104] and [113].
As was made clear in Metrobus, consideration was given at one time by Parliament to the introduction of a broad statutory dispensing power for failure to comply with the notification requirements. But at present, the dispensing power is confined to provisions relating expressly to the conduct of the ballot under section 232B. No such power exists in relation to obligations relating to the content of the ballot notice or strike notice itself.
Although some parts of his skeleton argument might have suggested otherwise, Mr. Reynold QC, who appears on behalf of the RMT, made it clear during the course of his submissions that there is in reality no difference between the parties as to the principled policy which underlies the legislation and the statutory provisions which are in play.
The specific provisions which are relevant here are those contained in section 219(4), 226(1), 226A, 227, 228A, 231 and 234A. I will not set them out but they may be taken as read into this judgment,
It is sufficient for present purposes to say this:
(1) Section 219(4) provides that industrial action including strike action is protected from suit if, among other things, it complies with section 226. Section 226 serves as the gateway provision to a number of pre-conditions which are aimed at ensuring the democratic validity of the strike and at achieving fair play between the unions and employer by setting rules for advance notification of a ballot (as indicated in Metrobus).
(2) Section 226(1)(a) requires that the strike action must have the support of a ballot which section 226(2)(a)(ii) further defines as including the requirements of sections 227 to 231. These include requirements to define the...
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