R (Cable & Wireless Services UK Ltd) v Central Arbitration Committee
| Jurisdiction | England & Wales |
| Judge | Mr Justice Collins : |
| Judgment Date | 04 February 2008 |
| Neutral Citation | [2008] EWHC 115 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8174/2007 |
| Date | 04 February 2008 |
[2008] EWHC 115 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Collins
Case No: CO/8174/2007
Mr Nigel Giffin, Q.C. (instructed by Herbert Smith LLP) for the Claimant
Mr Paul Nicholls (instructed by Messrs Pattinson & Brewer) for the Interested Party
The Defendant was not represented
Hearing date: 18 January 2008
Judgment Approved by the Court
For handing down
(Subject to editorial corrections)
This claim challenges a decision of the defendant given on 7 September 2007 whereby it confirmed that the bargaining unit which the interested party (IP) specified in its application was the appropriate one within the meaning of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 as amended by the Employment Relations Act 1999 (the 1992 Act).
Schedule A1 to the 1992 Act sets out a mechanism whereby a trade union can obtain recognition for the purpose of collective bargaining for particular employees. That mechanism is triggered by a trade union requesting such recognition (Paragraph 1 of the Schedule). Such a request will identify a proposed 'bargaining unit' which is, as paragraph 2(2) states, 'the group of workers concerned' or, if the request was on behalf of more than one group of workers, 'the groups taken together'. This claim concerns only one group. If the employer agrees that the unit requested is appropriate, the matter need go no further (Paragraph 10). But if the request is rejected and negotiations do not succeed in identifying an appropriate unit, the union may apply to the defendant to decide:-
“(a) whether the proposed bargaining unit is appropriate;
(b) whether the union has … the support of a majority of the workers constituting the bargaining unit”. (Paragraph 12(2)).
The defendant must when it accepts an application try to help the parties to reach within a period which is normally 20 days an agreement as to what the appropriate bargaining unit is (Paragraph 18(1)). If such attempts fail (as was the position in this case), the defendant must decide whether the proposed bargaining unit is appropriate. If it decides that the proposed bargaining unit is not appropriate, it must decide on a bargaining unit which is appropriate (Paragraph 19(2) and (3)).
Paragraph 19B sets out the matters which the defendant must take into account in deciding whether a bargaining unit is appropriate. 19B(2) to (4) provides as follows:-
“(2) The CAC must take these matters into account –
(a) the need for the unit to be compatible with effective management,
(b) the matters listed in sub-paragraph (3), so far as they do not conflict with that need
(3)(a) the views of the employer and of the union (or unions),
(b) existing national and local bargaining arrangements
(c) the desirability of avoiding small fragmented bargaining units within an undertaking;
(d) the characteristics of workers falling within the bargaining units under consideration and of any other employees of the employer whom the CAC considers relevant;
(4) In taking an employer's views into account for the purpose of deciding whether the proposed bargaining unit is appropriate, the CAC must take into account any view the employer has about any other bargaining unit that he considers would be appropriate.”
Paragraph 171 specifies a general duty on the CAC to “have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned”.
While the Schedule is lengthy and detailed, it is careful to leave to the defendant a very wide discretion as to how it should approach its task. It is enjoined to take the matters set out in Paragraph 19B into account, but Parliament has not dictated further (subject to one qualification) how it should weigh the various matters. The only qualification is that the need for compatibility with effective management (Paragraph 19B(2)(a)) is clearly regarded as of great importance since the matters listed in Paragraph 19B(3) must not conflict with that need.
It is not in the least surprising that Parliament has left a broad remit to the defendant. Members are appointed by the Secretary of State and are confined to 'persons experienced in industrial relations, and they shall include some persons whose experience is as representatives of employers and some whose experience is as representatives of workers'. (S.260(3) of the 1992 Act). While the chairman is a High Court judge, individual panels do not need to be chaired by or to include a lawyer. The defendant is thus an expert body whose approach to determining disputes as to whether a group of workers should be permitted to have collective bargaining carried out on their behalf by a union is not to be legalistic. This means that the court will be most reluctant to intervene and, although judicial review is obviously available as a remedy, it will only be if the defendant has either acted irrationally or made an error of law: see per Buxton LJ in R(Kwik-Fit GB Ltd) v CAC [2002] ICR 1212 at 1214. It may be said that this does no more than state what is the general scope of judicial review in relation to any decision making body. But it underlines the importance of the court not entertaining an attempt to dress up a challenge to the merits in the garb of judicial review proceedings: see Elias J in the Kwik-Fit case at first instance (Paragraph 23). This means that the weighing of evidence and the balancing of conflicting factors which are likely to be delicate, sensitive and controversial is for the defendant alone and (unless the very high threshold of perversity is shown to have been crossed) is not for the court. But irrationality in this context covers a failure to have regard to a material matter or the taking into account of an irrelevant matter and, if either is established and the result may have been affected, the court can intervene. Equally, and obviously, if an error of law is established, the court can intervene. In this context, an error of law will usually constitute a failure to construe and so to apply a statutory provision correctly. That is what is alleged in this case with particular reference to Paragraph 19B(3)(c) of the Schedule.
The claimant is a provider of telecommunication services. It has some 4600 employees at various branches throughout the United Kingdom. The proposed bargaining unit was described as 'all U.K. Field Service employees (except Managers)'. These numbered some 370 and so constituted no more than about 7% of the total workforce. The IP contended that Field Service employees were within a particular directorate and constituted a distinct organisational group under the Director of Field Services. Thus it would form an effective and appropriate bargaining unit. The claimant disagreed. It pointed out that the group did not contain only field engineers but also engineers and non-engineers who were desk based. Thus it did not include many field engineers who worked in different groups. Furthermore, members of the group were employed in various parts of the country and sometimes would number no more than one or two of the employees in a particular branch who would be doing similar work. In his statement prepared for the hearing before the defendant's panel, Mr Buckley, the Global Human Resources director of the claimant, said this (Paragraphs 63 to 66):-
“63.[T]he workforce within Field Services is fragmented because colleagues are based at so many different locations (either at customer sites, home or one of 20 Cable and Wireless offices) throughout the U.K. At many of these sites, colleagues from Field Services are within single figures and make up a negligible proportion of the total numbers at those sites …
64. As well as being a geographically dispersed team, Field Services is far from the homogenous unit as suggested by the [IP]. In fact it is also fragmented by reference to the work that people within the team actually do. The team is split between both engineers and non-engineers … Moreover, it would be incorrect to characterise all colleagues with Field Services as simply those who work “in the field”. Out of the whole of U.K. Field Services, 245 work in the field and 125 are desk based.
65. It would also be wrong to characterise Field Services as the directorate containing all engineers who work in the field … there are 179 engineers who are members of other directorates but who work in the field. Moreover, the vast majority of field engineers from Field Services could do the same work as the field engineers who operate outside of Field Services and vice-versa.
66. Moreover, if Field Services could in principle be treated as a separate bargaining unit, by application of the same reasoning so, too, could many of the other 29 directorates within Cable & Wireless that are at the same organisational level. This would be unworkable.”
I have said that the claim focuses on an alleged misconstruction and misapplication of Paragraph 19B(3)(c) of...
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