R (Kwik-Fit (GB) Ltd) v Central Arbitration Committee
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LORD JUSTICE LATHAM,SIR DENIS HENRY |
| Judgment Date | 18 March 2002 |
| Neutral Citation | [2002] EWCA Civ 512 |
| Date | 18 March 2002 |
| Court | Court of Appeal (Civil Division) |
[2002] EWCA Civ 512
IN THE SUPREME COURT OF JUDICATURE C/02/0391
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Elias)
Lord Justice Buxton
Lord Justice Latham
Sir Denis Henry
MR. D. BEAN Q.C. and MR. T. LINDEN (instructed by the Treasury Solicitor) appeared on behalf of the Appellant/Defendant.
MR. J. BOWERS Q.C. and MR. J. LEWIS (instructed by Messrs Halliwell Landau, Manchester) appeared on behalf of the Respondent/Claimant.
MISS H. MOUNTFIELD (instructed by Messrs Pattinson & Brewer) appeared on behalf of the Transport and General Worker's Union.
In this appeal the background facts; the contentions of the parties before the Central Arbitration Committee ("the CAC"); the determination of the CAC; and the relevant parts of the governing legislation, which is Schedule 1A to the Trade Union and Labour Relations (Consolidation) Act 1992; are all set out in lucid detail in the judge's judgment, in terms that all counsel engaged before us were good enough to say they had no dispute with. It would be a work of supererogation to try to repeat that exercise in this judgment. I therefore annexe to this judgment paragraphs 1 to 21 of the judgment of Elias J, from which any further information necessary to elucidate the present judgment can be obtained.
I would also venture to endorse in strong terms what was said by the judge in paragraph 23 of his judgment, that the CAC was intended by Parliament to be a decision making body in a specialist area, that is not suitable for the intervention of the courts. Judicial review, such as is sought in the present case, is therefore only available if the CAC has either acted irrationally or made an error of law. There was a faint attempt before Elias J to argue irrationality. The judge rejected that claim, and there is no respondent's notice to seek to reinstate it. The only issue before us is whether the CAC erred in law in its construction or understanding of the legislation that gives it its authority, and thus proceeded in a way that in law was not open to it.
I am quite clear that the determination of the CAC in this case was entirely in accord with the legal provisions that bind it. Since in so holding I will be venturing to differ from the views of the judge who has great experience in this area of work, I need to set out in some detail my reasons for so thinking, though at the end of the day the point appears to be a short one.
A striking feature of the scheme provided by Schedule A1 is that everything turns on and is put in motion by a "request" by the trade union to be entitled to conduct collective bargaining on behalf of a group of workers (paragraph 1). That request has to contain a proposal by the union of a particular "bargaining unit" (paragraphs 2 (3) and 8(b)). The CAC becomes involved if "employer rejects request", at which stage the union, not the employer, may apply to the CAC under paragraph 11(2)(a) for the CAC to decide, in the absence of agreement
"whether the proposed bargaining unit is appropriate or some other bargaining unit is appropriate".
Under paragraph 19(2) and (3) the CAC must decide "the appropriate bargaining unit" taking into account the matters specified, which as here relevant can be summarised as the need for the unit to be compatible with effective management; the views of the employer and of the union; the location of workers; and "the desirability of avoiding small fragmented bargaining units within an undertaking."
Simply reading these provisions through, it seems self-evident that the CAC's task is to start with the only proposal that it has before it, that contained in the union's request, and to determine whether that proposal is "appropriate": it however being open to the CAC under paragraph 11(2)(a) to determine that some other bargaining unit is appropriate.
It was complained on the part of the employer in this case that such a construction gives the union's proposal a preferable position, and upsets the industrial relations balance that ought otherwise to exist between proposals put forward by unions and proposals put forward by the employer. But, in my judgement, any such imbalance springs directly from the effect of the statutory provisions, which lay down clearly how the CAC must approach the question before it. That view is reinforced by the fact that, in the context of any particular request, the CAC of necessity can only recognize one bargaining unit. The word "appropriate" was plainly used by the draftsman to direct the CAC's attention to whether, bearing in mind the practice set out in paragraph 19(3) and 19(4), the bargaining unit that it had under consideration was suitable for the purpose for which it was to be used: that is, the conduct of collective bargaining in respect of a group of workers. Such a process does not exclude the consideration of bargaining units other than that proposed by the union. They may enter the picture in two ways: as a means of testing whether the union's bargaining unit is indeed appropriate; and as an alternative bargaining unit to be inserted in the request should the union's bargaining unit be seen as inappropriate. But it should be remembered that the statutory test is set at the comparatively modest level of appropriateness, rather than of the optimum or best possible outcome. Since the CAC has only to find and can only find one bargaining unit; and has only to be satisfied that the unit that it does find is appropriate; I see no escape from the contention that, provided the CAC concludes that the union's unit is appropriate, its inquiry should stop there.
The employer strongly argued before us that that was a misconstruction, in particular of paragraph 11(2) of the Schedule read with paragraph 19(2) and 19(3). I have already set out paragraph 11(2). The employer argued that the question "whether the proposed bargaining unit is appropriate or some other bargaining unit is appropriate" placed on the CAC, not the duty and obligation to which I have just referred, of considering first the union's proposed bargaining unit; but a duty to treat on equal terms, and effectively as competitors, the unit proposed by the union and any alternative bargaining unit that may be proposed by the employer; and that a choice had to be made, or that that approach had to be adopted, was reinforced by the language used in paragraph 19(2) and 19(3), that the CAC must, in 19(2), decide "the" bargaining unit within a period of time, and (3) must take into account the matters there set out in deciding "the" appropriate bargaining unit.
I fear that I am unpersuaded by those arguments. Although Mr. Bowers QC resisted this conclusion, it seems to me to be an inevitable implication of that construction of paragraph 11(2) that the CAC would then have to choose between the union's unit and the employer's unit, should it conclude that both of them are appropriate. In other words, having discharged its statutory duty of deciding appropriateness, it then goes on to perform another task of deciding which of the two or possibly more proposed units is more or most appropriate amongst them all. That, as it seems to me, involves reading into the statute a requirement that not only is not there, but also is inconsistent with what is there: because if the obligation under 11(2)(a) was to conduct a comparative exercise, it would be wrong to use simply the language of appropriateness, rather than language that much more clearly drew the Tribunal's attention to the need to choose between various alternatives.
It is also not irrelevant to that consideration that there is no formal provision under the statute for the employer to propose an alternative. Of course, he may do so, and in this case I am prepared to accept that that is what he did: though a fair reading of the entire objections raised by the employer seems to me more to concentrate on his objections to the London bargaining unit in the context of the management structure of the company as a whole, rather than to urge that there were positive merits supporting a bargaining unit extending to the company at large. However that may be, the employer can take part in this process without proposing any bargaining unit at all. If it were intended that in every case where the employer proposed an alternative unit his unit would be necessarily considered pari passu with the union's unit, then I cannot help thinking that some much clearer guidance would have been given in the Schedule to that end, with provisions for the employer to take the necessary step preliminary to that consideration.
However, in that context, of the employer's interest, it is important to note that the analysis of this Schedule, in terms of the CAC starting with consideration of the union's unit, is subject to the important qualification that, in determining the appropriateness of the union's proposed bargaining unit, the CAC must not confine itself to the union's arguments, but has to take into account the statutory considerations, including importantly effective management and the views of the employer. As he did in the present case, the employer may well raise objections to the appropriateness of the union's proposed bargaining unit by urging that only another and different unit could be appropriate. The CAC cannot simply ignore such objections. It has to determine whether the objections, and the availability of alternatives that may form an important...
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