R the Independent Workers Union of Great Britain v Secretary of State for Business, Energy and Industrial Strategy and Others

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLord Justice Phillips,Lord Justice Underhill,Lord Justice Bean
Judgment Date26 Feb 2021
Neutral Citation[2021] EWCA Civ 260
Docket NumberCase No: C1/2019/0889

[2021] EWCA Civ 260

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

THE HON MR JUSTICE SUPPERSTONE

CO/1604/2018

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Underhill

(Vice-President of the Court of Appeal Civil Division))

Lord Justice Bean

and

Lord Justice Phillips

Case No: C1/2019/0889

Between:
The Queen on the application of the Independent Workers Union of Great Britain
Appellant
and
Secretary of State for Business, Energy and Industrial Strategy and Others
Respondents

Lord Hendy QC and Sarah Fraser Butlin (instructed by Harrison Grant) for the Appellants

Daniel Stilitz QC and Joseph Barrett (instructed by Government Legal Department) for the Secretary of State (the Third Interested Party in the High Court)

The Central Arbitration Committee, Cordant Security Limited and the University of London (the Defendant, First Interested Party and Second Interested Party in the High Court) did not appear and were not represented.

Hearing date: 26 November 2020

Approved Judgment

Lord Justice Bean

Introduction

1

The Independent Workers' Union of Great Britain (“the IWGB” or “the Union”) is an independent trade union whose members include security guards, post room workers, audio-visual staff, porters and receptionists who in 2017 were working for Cordant Security Ltd at the University of London.

2

The Central Arbitration Committee (“the CAC”) is the statutory body charged with resolving union recognition disputes. Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) sets out the detailed scheme under which it operates.

3

The Secretary of State for Business, Energy and Industrial Strategy has ministerial responsibility for the CAC. The Secretary of State was joined as an interested party to these proceedings pursuant to s 5 of the Human Rights Act 1998 (“the HRA”), in particular because the Union seeks a declaration of incompatibility under s 4 of the HRA.

4

On 20 November 2017 the Union made two applications to the CAC to be recognised by Cordant and by the University for collective bargaining purposes under Schedule A1 to the 1992 Act. The CAC, in accordance with its usual practice, allocated the applications to a panel of three members of the CAC: the panel chair in the present cases was Regional Employment Judge Barry Clarke (now President of Employment Tribunals in England and Wales).

5

The IWGB sought judicial review of two decisions of the CAC. The first rejected the Union's application to be recognised for collective bargaining purposes by Cordant for a proposed bargaining unit comprising “Security Guards, Postroom workers, AV Staff, Porters and Receptionists” working for Cordant at the University's Senate House site (“the proposed Cordant bargaining unit”) (“the First Decision”).

6

The second rejected the IWGB's application to be recognised for collective bargaining purposes by the University, which it described in evidence as “the de facto employer”, in respect of the proposed Cordant bargaining unit (“the Second Decision”).

7

The basis of the First Decision was that the CAC was satisfied that, for the purposes of paragraph 35 of Schedule A1 to the 1992 Act there was in force a collective agreement under which another independent trade union, namely UNISON, was recognised by Cordant, the employer, as entitled to conduct collective bargaining on behalf of workers falling within the IWGB's proposed bargaining unit. Accordingly, the IWGB's application to the CAC against Cordant was rejected as not admissible.

8

The basis of the Second Decision was that the CAC was satisfied that the University was not the employer of the workers in the Union's proposed bargaining unit and therefore the Union's application to the CAC against the University was likewise not admissible, although on different grounds.

9

On 20 July 2018 Lambert J granted the Union permission to seek judicial review to challenge the two decisions and directed that the two cases be listed together. The hearing took place in the Administrative Court before Supperstone J on 26 February 2019. By a reserved judgment handed down on 25 March 2019 he dismissed the claim. Permission to appeal to this court was granted by Floyd LJ on 19 December 2019.

10

The former employees of Cordant working at the University and in respect of whom IWGB seek negotiating rights are now employed by the University itself, having been the subject of transfers under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) in two tranches (in May 2019 and March 2020) since the decision of Supperstone J.

Is the appeal academic?

11

Although the Union sought, and was granted, permission to appeal against both decisions of the CAC, it has not pursued the appeal against the Second Decision. That aspect of the case – the attempt to seek bargaining rights with a “ de facto employer” — is no longer a live issue, since the University is now the actual employer. The Government Legal Department, on behalf of the Secretary of State, suggested in correspondence before the hearing that the appeal against the First Decision had also become academic since Cordant were no longer involved at the relevant workplace (and have taken no part in this appeal). However, at the outset of the hearing Mr Stilitz QC for the Secretary of State accepted that we should proceed to hear the appeal. It would be excessively formalistic not to do so since the effect of TUPE is that the University have taken the place of Cordant as the employer concerned.

12

Mr Stilitz did enter the caveat that we have no up to date evidence of fact about matters such as the total number of employees of the University at the Senate House site, or the total number of employees of the University covered by the collective bargaining agreement with UNISON. That is a fair point, but Lord Hendy QC for the IWGB was right to submit that the issue of principle on which the Union appeals arises irrespective of the detailed evidence of fact. Nothing would be gained, he pointed out, and much time and costs would be wasted, by requiring the IWGB to make a new application to the CAC, have it inevitably rejected under paragraph 35, seek judicial review before a judge who would follow the previous decision of Supperstone J, and finally seek permission to appeal to this court. In the meantime the IWGB would remain shut out from seeking compulsory collective bargaining rights.

13

Accordingly we heard the appeal against the First Decision on its merits. We were greatly assisted by the submissions on each side.

The factual background

14

At the time of the CAC's First Decision Cordant employed approximately 4,000 workers at sites owned or controlled by their clients under outsourcing agreements in “support” roles, such as security. The University had an outsourcing contract with Cordant for the provision of its “front of house” services.

15

Originally a voluntary collective agreement had been made between Balfour Beatty and UNISON with effect from 23 September 2011. This collective agreement was the subject of various TUPE transfers and by 2017 had become, so far as relevant, a collective agreement between UNISON and Cordant covering all staff employed by Cordant at the University's sites. UNISON (and the University and College Union, which represents teaching and research staff) were recognised by the University for collective bargaining purposes for all except its most senior staff.

16

Approximately 70 of the workers then employed by Cordant to work at the Senate House site, and now employed by the University itself, would fall within the IWGB's proposed bargaining unit.

The Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”)

17

The legal framework governing applications for recognition by trade unions is set out in Schedule A1 to the Act, originally inserted by the Employment Relations Act 1999.

18

Paragraph 1 of Schedule A1 provides:

“A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with this Part of this Schedule.”

19

“Worker” is defined by s.296 of the 1992 Act, in so far as relevant, as follows:

“(1) In this Act ‘worker’ means an individual who works, or normally works or seeks to work—

(a) under a contract of employment, or

(b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his, or

(c) in employment under or for the purposes of a government department (otherwise than as a member of the naval, military or air forces of the Crown) in so far as such employment does not fall within paragraph (a) or (b) above.

(2) In this Act ‘employer’, in relation to a worker, means a person for whom one or more workers work, or have worked or normally work or seek to work.”

20

A classic statement of the CAC's procedure is contained in the judgment of Elias J in R (Kwik-Fit Ltd) v Central Arbitration Committee [2002] EWHC Admin 277 at [6]–[15]:

“6. The purpose of the legislation is to enable a trade union which is refused recognition by an employer to use the legal process to require the employer to enter into collective bargaining. Recognition means that the union should be “entitled to conduct collective bargaining on behalf of a group or workers” (paragraph 1). Collective bargaining, in turn, is defined as “negotiations relating to pay, hours and holidays”, unless the parties agree to a broader range of matters (paragraph 3).

7. The process commences with the trade union making a request for recognition from the employer. Certain conditions must be met if the request is to be treated as valid within the terms of the legislation. For example, it must be in...

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