United Closures And Plastics Limited For Interdict And Interim Interdict
| Jurisdiction | Scotland |
| Judge | Temp Judge J. Beckett QC |
| Neutral Citation | [2011] CSOH 114 |
| Year | 2011 |
| Published date | 01 July 2011 |
| Date | 20 June 2011 |
| Court | Court of Session |
| Docket Number | P650/11 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 114 | |
| P650/11 | OPINION OF TEMPORARY JUDGE J BECKETT QC in the Petition of UNITED CLOSURES AND PLASTICS LIMITED Petitioner; for Interdict and interim interdict ________________ |
Petitioner: Hardman, Advocate; Maclay Murray and Spens, Solicitors
Respondent: McShane, Advocate; Thompsons, Solicitors
20 June 2011
Introduction
[1] The petitioner, United Closures and Plastics Ltd, sought interim interdict against Unite the Union, the respondent, in respect of discontinuous strike action scheduled to commence on Wednesday 22 June 2011, in relation to an industrial dispute at the petitioner's premises in Bridge of Allan. The background is that new working conditions will commence on 29 August 2011 which change the shift pattern and, in some cases, wages of workers in what are known as the metals and plastics department of the petitioner's manufacturing operation.
[2] The basis of the petition is that the respondent union, having acted in breach of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) sections 226A, 227, and 234A, and therefore being denied the protection contained in section 219 of that Act, would incur delictual liability to the petitioner by inducing employees to breach their contracts of employment by taking strike action.
[3] The petitioner's motion for interim interdict called before me on 14 June 2011. Mr McShane, Advocate, appeared to oppose the motion, there being a caveat in place. At the request of both parties I agreed to continue the case to a hearing on 16 June 2011 and Mr McShane gave an undertaking that proposed strike action on Wednesday 15 June would not take place. Having heard parties' submissions, I continued the case with a view to giving a decision on 20 June 2011. On that date, having been addressed on further matters which I raised with parties, I refused the petitioner's motion for interim interdict. I was asked by Mr Hardman, Advocate for the petitioner, to give my reasons for doing so in writing.
The statutory provisions
[4] The balloting provisions are found in sections 226-235 of the 1992 Act and there is a very helpful analysis of them in paragraphs 15 to 30 of the opinion of the court given by Lord Justice Elias in the Court of Appeal in the case of National Union of Rail, Maritime and Transport Workers v Serco Limited trading as Serco Docklands, The Associated Society of Locomotive Engineers and Firemen v London & Birmingham Railway Limited trading as London Midland, [2011] EWCA Civ 226. Parties referred to this as 'the ASLEF case'. Not all of these provisions are relevant to the motion for interim interdict in this case and I will set out only those parts of the sections which are most germane, and summarise their effect as they apply to this motion as it was presented.
[5] Section 219
219 - Protection from certain tort liabilities.
(1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only:-
(a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or
(b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance.
(4) Subsections (1) and (2) have effect subject to sections 222 to 225 (action excluded from protection) and to sections 226 (requirement of ballot before action by trade union) and 234A (requirement of notice to employer of industrial action); and in those sections "not protected" means excluded from the protection afforded by this section or, where the expression is used with reference to a particular person, excluded from that protection as respects that person.
[6] In order for a trade union to be protected under section 219 of the 1992 Act, section 234A and section 226 must be complied with. Mr Hardman indicated, that so far as he was concerned, sections 222-225 were not relevant in this case.
[7] Section 226
226. Requirement of ballot before action by trade union.
(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action.
(a) is not protected unless the industrial action has the support of a ballot, and
(b) where section 226A falls to be complied with in relation to the person's employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.
In this section "the relevant time", in relation to an act by a trade union to induce a person to take part, or continue to take part, in industrial action, means the time at which proceedings are commenced in respect of the act.
(2) Industrial action shall be regarded as having the support of a ballot only if:
(a) the union has held a ballot in respect of the action -
(i) in relation to which the requirements of section 226B so far as applicable before and during the holding of the ballot were satisfied,
(ii) in relation to which the requirements of sections 227 to 231 were satisfied, and
(iii) in which the majority voting in the ballot answered "Yes" to the question applicable in accordance with section 229(2) to industrial action of the kind to which the act of inducement relates;
....
[8] Section 226 requires, inter alia, that there must be the support of a ballot and that, where applicable, the terms of section 226A must be complied with.
[9] Section 226A
226A - Notice of ballot and sample voting paper for employers.
(1) The trade union must take such steps as are reasonably necessary to ensure that -
(a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), and
(b) not later than the third day before the opening day of the ballot, the sample voting paper specified in subsection (2F),
is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.
(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing -
(a) stating that the union intends to hold the ballot,
(b) specifying the date which the union reasonably believes will be the opening day of the ballot, and
(c) containing -
(i) the lists mentioned in subsection (2A) and the figures mentioned in subsection (2B), together with an explanation of how those figures were arrived at, or
(ii) where some or all of the employees concerned are employees from whose wages the employer makes deductions representing payments to the union, either those lists and figures and that explanation or the information mentioned in subsection (2C).
(2A) The lists are -
(a) a list of the categories of employee to which the employees concerned belong, and
(b) a list of the workplaces at which the employees concerned work.
(2B) The figures are -
(a) the total number of employees concerned,
(b) the number of the employees concerned in each of the categories in the list mentioned in subsection (2A)(a), and
(c) the number of the employees concerned who work at each workplace in the list mentioned in subsection (2A)(b).
(2C) The information referred to in subsection (2)(c)(ii) is such information as will enable the employer readily to deduce -
(a) the total number of employees concerned,
(b) the categories of employee to which the employees concerned belong and the number of the employees concerned in each of those categories, and
(c) the workplaces at which the employees concerned work and the number of them who work at each of those workplaces.
(2D) The lists and figures supplied under this section, or the information mentioned in subsection (2C) that is so supplied, must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with subsection (1)(a).
(2E) For the purposes of subsection (2D) information is in the possession of the union if it is held, for union purposes -
(a) in a document, whether in electronic form or any other form, and
(b) in the possession or under the control of an officer or employee of the union.
(2F) The sample voting paper referred to in paragraph (b) of subsection (1) is -
(a) a sample of the form of voting paper which is to be sent to the employees concerned, or
(b) where the employees concerned are not all to be sent the same form of voting paper, a sample of each form of voting paper which is to be sent to any of them.
(2G) Nothing in this section requires a union to supply an employer with the names of the employees concerned.
(2H) In this section references to the "employees concerned" are references to those employees of the employer in question who the union reasonably believes will be entitled to vote in the ballot.
...
[10] In so far as relevant to the present case, section 226A, requires that a union must take such steps as are reasonably necessary to ensure that the employer receives at the specified time before the ballot, written notice containing, inter alia, the figure of the total numbers of employees concerned, subsection (2B) (a). Mr Hardman for the petitioner, made it plain in his submissions that he was concerned with the figures referred to in subsection (2B) (a) and not the lists or categories which are referred to in subsections (2A) and (2B) (b) and (c). Whilst there is nothing to stop the union from giving the names of the members to be balloted, subsection (2G) specifically provides that nothing in the section requires that this should be done.
[11] Subsection (2D) requires that the figures must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it gives notice that it intends to hold a ballot and 'employees...
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