Secretary of State for Employment v ASLEF (No. 2)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE BUCKLEY,LORD JUSTICE ROSKILL
Judgment Date19 May 1972
Judgment citation (vLex)[1972] EWCA Civ J0519-1

[1972] EWCA Civ J0519-1

In The Supreme Court of Judicature

Court of Appeal

Civil Division

Before:-

The Master of The Rolls (Lord Denning),

Lord Justice Buckley

and

Lord Justice Roskill

Between:-
Secretary of State for Employment
Applicant (Respondent)
-and-
The Associated Society of Locomotive Engineers and Firemen and Others
Respondents (Appellants)

Mr PETER PAIN, Q.C. and Mr E.V. FALK (instructed by Messrs Kenneth Brown, Baker, Baker) appeared on behalf of the Associated Society of Locomotive Engineers and Firemen,

Mr K.W. WEDDERBURN and Mr IAN HUNTER (instructed by Messrs Pattinson & Brewer) appeared on behalf of the National Union of Railwayraen.

Mr MORRIS FINER, Q.C. and Mr I. IRVINE (instructed by Messrs Russell Jones & Walker) appeared on behalf of the Transport Salaried Staffs Association.

Mr PETER WEBSTER, Q.C. and Mr T. MORISON (instructed by Mr Evan Harding) appeared on behalf of the British Railways Board.

THE SOLICITOR-GENERAL (Sir Geoffrey Howe, Q.C.), Mr T. BINGHAM, Q.C. Mr BRIAN DAVENPORT and Mr PETER SCOTT (instructed by the Solicitor to the Department of Employment) appeared on behalf of the Secretary of State for Employment.

THE MASTER OF THE ROLLS
1

This case arises under the emergency procedure of the Industrial Relations Act, 1971. Such is the emergency that the National Industrial Relations Court sat suddenly for long, hours to deal with it. It comes to us, too, on short notice. We realise that such pressure is at times inevitable, but we hope that in future if the Secretary of State intends to apply to the Courts he will be able to give more notice to those concerned. It is very difficult for the judicial process to be properly conducted in such haste. At the same time, we would like to thank all concerned for the way in which they have handled the matter. They have combined expedition, industry and ability to a high degree.

2

This Act gives great new powers to the Secretary of State and entrusts equally great responsibilities to him. It has been suggested that the role of the Secretary of State is so vast that the Courts are in danger of becoming a rubber stamp to carry out his decision. This suggestion must be emphatically rejected. The Courts of this country owe no subservience to anyone save to the law as enacted by Parliament and laid down by the Judges, If Parliament gives great powers to a Minister, these Courts must allow them to him; but at the same time we will be diligent to see that he exercises them in accordance with the law. This is especially the case where, as here, there is no immediate control by Parliament. The Minister applies to the Court quickly before Parliament will have heard of his intentions. Pending the decision of the Court, the matter is sub judice and his action is unable to be discussed. It is only after action has been taken that the matter may be raised in Parliament. So the Courts must enquire closely tosee that any action of the Minister is within his lawful authority.

3

Now for the nature of the emergency. There are three trade unions who represent the workers on the railways: The National Union of Railwaymen, the Association of Locomotive Engineers and Firemen and also the Transport Salaried Staffs Association. They have been pressing for increases in wages and salaries. They have concentrated on the total global sum for the year from the 1st May, 1972, to the 30th April, 1973. On the 7th March of this year the Railways Board offered to make an increase of £24 million or 8½% It was rejected. Next day they raised the offer to £27,400, 000 or 9.34%. This, too, was rejected. On the 20th March the Railways Board made a final offer to increase by £30,800, 000 or 11% The union leaders would not accept this either.

4

In an attempt to effect a settlement, the Railways Board and the union leaders invited Mr Jarratt to act as Chairman at discussions between them. No agreement was reached, but Mr Jarratt late at night on the 16th April, 1972, made a proposal which he no doubt considered reasonable. His proposal involved an increase by the total global sum of £35 million or 12.5%. At midnight the leaders of two of the unions decided to reject the award. The other union, TSSA, considered that it might be a basis for a settlement. That night the men obeyed instructions to work to rule. There was much dislocation of services. The Secretary of State then applied to the National Industrial Relations Court to order a cooling off period. On the 19th April the Court so ordered for 14 days from the resumption of normal working. Normal working wasresumed on the 25th April, 1972. The cooling off period was due to end at midnight on the 8/9th May, 1972. Meanwhile, the Railways Board agreed to accept the Jarratt award.

5

On the 4th May, 1972, the Board made an offer which gave the workers an important increase in the minimum basic rate. They offered to increase it to £20.50 from the 5th June, 1972. This would cost the Railways Board a total global sum of £34,500, 000 or 12.3%. The trade union leaders refused this offer. They asked for the increase in the minimum basic rate to be dated back to the 1st May, 1972. If this had been done, it would mean that the total global increase for the year would have been £38 million or 13½% place of the £35 million under the Jarratt award. The Railways Board, on their part, refused this request. So the trade union leaders directed their workers to resume their work to rule with effect from midnight on Thursday 11/12th May, 1972.

6

On that Thursday evening the Secretary of State determined to apply to the National Industrial Relations Court to order a ballot of the members to ascertain if the workers were behind their leaders in this matter. He was under a statutory duty to consult those trade unions which were registered. TSSA was the only one registered, and the Secretary of State spoke by telephone to the secretary of that union; and then he made his application to the Court that very evening.

7

He did not get all the facts in his apDlication quite right, because, as Mr Finer pointed out to us, TSSA had been careful in their instructions to their people and had not put it in such terms as they had before. During the hearing, the Railways Board, we are told, offered to date back that increase in the minimum basic rate to the 1st June, 1972, bringing it upto £34,900,000. But this did not achieve a settlement. Late on Saturday, 13th May the Court ordered a ballot. The trade unions appeal to this Court.

8

In dealing with the appeal, I will not go through all the sections of the Act in detail. That would be too tedious. I will take the three conditions precedent to a ballot and see if they have been fulfilled.

9

First, the threat to the national economy. Before a ballot is ordered, the Act in Section 141(1)(b), which incorporates Section 138(2) requires this important condition to be satisfied: The industrial action in question must be such as to cause an interruption in the supply of goods or in the provision of services of such a nature or on such a scale as to be likely to be gravely injurious to the national economy. In short, there must be a grave threat to the national economy.

10

This is not a matter which is entrusted to the Secretary of State for decision. It is true that he has to form that view, the view that there is such a threat, but it is for the Court to be satisfied that it is a real and serious threat. That is made clear by Section 142, sub-section (1), making it plain that the Court must be satisfied on the evidence that there are sufficient grounds for believing, if I may put it this way, that the proposed, action would be gravely injurious to the national economy. The evidence on this first requisite point is overwhelming.

11

On the work to rule, the railway services have been, and will be, utterly dislocated; hundreds of thousands of commuters have been, and will be, put to misery, discomfort end loss; goods services have been, and will bo, gravely disruptedand may break down altogether; supplies to power stations and coke ovens will soon be much reduced, so that thoy may have to cut down their services. On all the evidence, there is no possible doubt that the country is faced with an emergencl such as Parliament envisaged when it passed the Industrial Relations Act and gave wide powers to the Secretary of State.

12

Now for the next requisite, irregular industrial action short of a strike. Before any ballot is ordered, it must appear to the Secretary of State under Section 141(1)(a) that any irregular industrial action short of a strike has begun or is likely to begin. It is said that the Secretary of State has misdirected himself in law on the meaning of the words "irregular industrial action" and that it could not reasonably appear to him that there was here any irregular industrial action.

13

I turn, therefore, to the definition in the Act of "irregular industrial action short of a strike". It is contained in Section 33, sub-section (4). The primary requisite is that there should be a concerted course of conduct by a group of workers with the intention of interfering with the production of goods or the provision of services. That primary requisite is here fulfilled. The three unions have combined together to order the men to work to rule. They readily admit that their intention is to disrupt the railway service. But there is a further requisite, I will call it the secondary requisite, in Section 33(4)(b). This requires that in the case of some or all of the group of workers the concerted course of conduct is carried on in breach of their contracts of employment.

14

For this purpose, of course, we must consider what their contracts of employment are and see whether this conduct is in breach of those contracts. So we have been referred to thecontracts of employment. They are contained in a series of collective agreements made by the British Railways...

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    ...down in reliance upon that provision, and may not rely upon section 524(1). 2 See, eg, Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455. 3 Re Mornington Peninsula Shire Council [2011] FWAFB 4 Ambulance Victoria v United Voice [2014] FCA 1119. 5 The definition of 'building in......
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