R (National Union of Journalists) v Central Arbitration Committee
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Hodge,MR JUSTICE HODGE |
| Judgment Date | 19 November 2004 |
| Neutral Citation | [2004] EWHC 2612 (Admin) |
| Date | 19 November 2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: C0/1770/2004 |
[2004] EWHC 2612 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Hodge
Case No: C0/1770/2004
Mr John Hendy QC & Ms Jenny Eady (Instructed by Thompson Solicitors) for the Claimant
Ms Dinah Rose (Instructed by Treasury Solicitor) for the Defendant &
Mr Thomas Linden (Instructed by Lovells Solicitors) for Interested Party
The National Union of Journalists (NUJ) has members who work for Mirror Group Newspapers (MGN). In the spring of 2003, it seemed likely that MGN would start publishing its Racing Post newspaper seven days a week. This would mean a change in the terms and conditions of journalists working in the Sports Division of MGN. The membership of the NUJ within the Division increased. No union was recognised by management to collectively bargain on behalf of staff within the Division. Discussions began between NUJ and MGN. They seemed to be going well. At the NUJ, the negotiators clearly thought a recognition agreement was to be signed with the union.
MGN has over 600 journalists working for its other titles. It has a recognition agreement with the British Association of Journalists (BAJ) for other national titles. That union has about 140 journalists in membership working in those other titles. BAJ was formed in the early 1990s. It was and is a breakaway union from the NUJ. BAJ is an independent trade union but is not affiliated to the TUC. It can be reasonably inferred from this case that the two unions do not get on. At the time of the hearing before the CAC the BAJ had at most one member who worked within the Sports Division of MGN. The NUJ had members representing probably more than half of the journalists working within that Division. But the NUJ has no recognition agreement of any sort with MGN in any of its national Divisions.
On 3rd July 2003 BAJ signed a recognition agreement with MGN under which BAJ obtained exclusive negotiating rights with MGN for journalists in the SportsDivision. No notice of this possibility had been given to the NUJ. The NUJ was shut out from negotiating with MGN. The NUJ was no doubt furious about this. The Central Arbitration Committee (CAC) to whom this issue was referred describes the treatment of the NUJ as shabby. It was certainly unsporting.
The CAC conducted a hearing and decided that the application for a recognition agreement made by the NUJ was not admissible. The NUJ challenges the lawfulness of that decision. MGN Ltd, as interested party, is the main respondent to this application. The BAJ did not appear and was not represented. The CAC appeared to address the court on human rights issues alone.
The Recognition Procedure
Schedule A1 Trade Union and Labour Relations (Consolidation) Act 1992 (Schedule A1) as amended has, since 6 th June 2000, provided a mechanism by which independent trade unions with sufficient support from within a proposed bargaining unit may obtain what has come to be known as 'statutory recognition'. The scheme is that a trade union seeking recognition to conduct collective bargaining on behalf of a group of workers makes a request for recognition to the employer. If the request is rejected the union may apply to the CAC to decide whether the bargaining unit is appropriate and whether the union has the support of a majority of workers in the unit.
The CAC must decide whether any application is admissible. Formal procedures must be followed. But in addition by paragraph 35 Schedule A1 an application is not admissible if:
"the CAC is satisfied that there is already in force a collective agreement under which a union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of any workers falling within the relevant bargaining unit"
In this case MGN had entered into a voluntary recognition agreement with the BAJ and had refused to recognise the NUJ. The union applied to the CAC on 25 th September 2003 for recognition for collective bargaining by MGN in relation to journalists employed in MGN's Sports Division. It relied on a petition in support by 100 of the approximately 130 journalists involved. MGN, in its response on 7 th October 2003, contended that the application was inadmissible due to the existing collective agreement with the BAJ. The NUJ replied by asserting that there was no valid collective agreement with BAJ.
The application was heard and considered by the CAC over two days in December 2003. They issued their decision on 8 th January 2004 and decided that the application was not admissible. In accordance with the pre-action protocol the NUJ asked the CAC to reconsider its decision, which it declined to do on the 16 th March 2004. These judicial review proceedings were commenced on 5 th April 2004. Mitting J granted permission to proceed by an order dated 15 th June 2004.
The CAC decision
The NUJ's application to the CAC was that it should be "recognised for collective bargaining by Sports Division-MGN Limited for a bargaining unit consisting of all journalists working at the Racing Post, Racing Post Weekender, Raceform Update, Racing and Football Outlook, Raceform/The Form Book and Racing Post website, but excluding the Managing Director (responsible for the above titles), the Editor of the Racing Post and any freelance journalists working for the above titles".
The CAC decision is full and clear. It sets out the background to the application some of which follows. It said in its decision
"29…. The BAJ is a rival to the NUJ for the representation of journalists. Not only is the BAJ a competing union, it is also a breakaway from the NUJ, having been formed in the early 1990s. It holds a certificate of independence but is not affiliated to the Trades Union Congress….
At some point in early June, Mr Turner, the General Secretary of the BAJ became aware (in a manner, which was never fully explained) of the NUJ's discussions with the management of the Sports Division and on June 13th, at a meeting with Mr Budd, Mr Turner received confirmation of the NUJ's approach. He then sought to make an approach for recognition on behalf of the BAJ, which management indicated it was prepared to entertain. From then onwards, matters between the BAJ and the management proceeded rapidly, to the point where, at the latest by July 3rd, an agreement was arrived at for the recognition of the BAJ by MGN in respect of journalists employed on the Racing Post and associated titles. At no time did the management make the NUJ aware that it had a competitor in the recognition discussions. Nor did the management apply to the BAJ the majoritarian principle which had featured so prominently in its discussions with the NUJ. Indeed, it seems to be common ground that throughout this period, and indeed right up until the hearing, the BAJ has had at most one member among the journalists of the Sports Division and on occasions none at all. It needs no great creativity to imagine the reaction of the NUJ officials when they heard of these events. It seems to the Panel that theNUJ was shabbily treated by the management of MGN during the month of June".
The CAC Panel then decided that the relevant date for it to "be satisfied", in the words of para 35 of schedule A1, that a union is recognised, is the date the Panel takes its decision on the application. That is clearly correct and appears to have been accepted by the parties. It then dealt with the submission from the NUJ counsel that the agreement with the BAJ was a 'blocking' voluntary recognition agreement and that for it to be effective the union concerned "must have 'substantial' support, i.e. non trivial support but not necessarily majority support'" The CAC Panel concluded on this submission…
However, we have found ourselves unable to accept this submission. The definition of recognition in section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992 (as applied to paragraph 35 by paragraph 3 (6)) seems to us clearly to contemplate that the act of recognition is something to which only the employer and the recognised union are parties. The status of a recognised union flows from a decision of the employer to grant recognition (and, no doubt, of the union to accept it) and not in addition from the consent of the workers in relation to whom the collective bargaining will occur. Thus, section 178 (3) provides that "recognition", in relation to a trade union, means "the recognition of the union by an employer… to any extent for the purposes of collective bargaining; and "recognised" and other related expressions shall be construed accordingly". Equally, the definitions of "collective agreement" and "collective bargaining" in section 178 (1) refer only to the unions and employer or employers associations as parties to collective agreements. By way of contrast, in section 244 of the Act a trade dispute is defined as "a dispute between workers and their employer" relating wholly or mainly to the same list of matters (set out in section 244 (1)) as those to which an agreement must relate to or be connected with in order to constitute a collective agreement (set out in section 178 (2)). This clearly shows that Parliament has been astute to distinguish between relations between an employer and a trade union, on the one hand, and between an employer and the workforce, on the other, for the purposes of different statutory provisions.
This being so, it follows, it seems to us,...
To continue reading
Request your trial
-
R (National Union of Journalists) v Central Arbitration Committee
...the appeal of the claimant, the National Union of Journalists, against the dismissal by Mr Justice Hodge (The Times November 25, 2004; (2005) ICR 493) of its claim for judicial review of the decision of the defendant, the Central Arbitration Committee, on January 8, 2004, which had rejected......