United Kingdom Association of Professional Engineers v Advisory, Conciliation and Arbitration Service
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Diplock,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Scarman |
| Judgment Date | 14 February 1980 |
| Judgment citation (vLex) | [1980] UKHL J0214-2 |
| Date | 14 February 1980 |
| Court | House of Lords |
[1980] UKHL J0214-2
Lord Wilberforce
Lord Diplock
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Scarman
House of Lords
My Lords,
The issues arising in this case have been so fully analysed, and the conclusions upon them so clearly stated, by my noble and learned friend Lord Scarman that I can see no need to add any observations of my own. For the reasons given by his Lordship I would allow this appeal.
My Lords,
I agree with my noble and learned friends that this appeal must be allowed; and there is little that I can usefully add to their reasons for doing so.
In making their report upon a recognition issue ACAS are under a statutory duty to set out their findings and their reasons why they decided to make the recommendation that they made, or, as in the instant case, not to make a recommendation at all. The principal addressees of a report are the unions and employees concerned in the issue and reports are written in a style which although it is readily understood by those who are accustomed to the conduct of industrial relations is less familiar to judges who are confronted with applications for judicial review. It seems to me that much of the difficulty in the instant case has arisen from the fact that ACAS, as a body highly experienced in these matters, consider that candour is out of place in stating reasons for their decisions in recognition disputes since plain speaking might be harmful to industrial relations and to ACAS's own role as adviser and conciliator in future disputes. Meanings that are conveyed by indirection and by inference only but can be "read between the lines" quite clearly by those accustomed to the jargon in which industrial relations are conducted, would appear to be a common feature of communications in this field.
Reading between the lines of the report upon the UKAPE reference I find quite plain the reasons for ACAS's refusal to recommend that UKAPE should be recognised as representing in collective bargaining with their employer the grades of employees whom they seek to represent, despite the wishes of a very large majority of those employees that UKAPE should do so. The over-riding consideration in ACAS's view is that no new union should be permitted to intrude in the existing bargaining arrangements at the W. H. Allen's factory (which are governed by the industry-wide agreement between EEF and CSEU) if this would arouse the opposition of the CSEU unions, backed as it was by threat of industrial action. If this was ACAS's view as to what was best for industrial relations at W. H. Allen's factory it does not seem to me to be possible for a court charged with the function of judicial review of ACAS's decision to say that no reasonable body of persons experienced in industrial relations could have come to that conclusion. Nor can it be said that ACAS has paid no regard to its duty to promote the extension of collective bargaining. The reference in the "Conclusions" to the understandings between EEF and CSEU as to the criteria for non-procedural categories, conveys by indirection to those employees who want to be represented in collective bargaining with their employer, the advice of ACAS that if they want to achieve their object the way to do it is to join TASS or ASTMS, instead of UKAPE.
My Lords,
For the reasons developed in the speech of my noble and learned friend, Lord Scarman, which I have had the advantage of reading in draft, I would allow the appeal.
My Lords,
I have had the opportunity of considering in draft the speech prepared by my noble and learned friend Lord Scarman. I agree with it, and for the reasons there expressed I would allow the appeal.
My Lords,
The issue which brings these parties to the courts, and now to your Lordships' House, is whether an employer, W. H. Allen Sons & Co. Ltd., should recognise a union, the United Kingdom Association of Professional Engineers (UKAPE) for the purpose of collective bargaining on behalf of a group of its employees at their factory premises in Bedford. It raises questions as to the interpretation of the Employment Protection Act 1975 (the Act). UKAPE is an independent trade union with some 5,000 members. Membership is limited to professional engineers and others of comparable status in the engineering industry. The union is not affiliated to the T.U.C.: nor is it a member of the Confederation of Shipbuilding and Engineering Unions (CSEU) with whom the Engineering Employers' Federation (EEF), to which W. H. Allen & Co. Ltd. belong, have procedure and recognition arrangements covering manual and staff employees in the industry.
In June 1976, UKAPE, having secured a certificate of independence pursuant to section 8 of the Act, submitted a request for recognition for the purpose of collective bargaining on behalf of senior engineering staff. This grade of staff is not covered by the procedural arrangements between the company and the CSEU unions. The company rejected the request on the ground that it would create disharmony to industrial relations in the company and the industry "rather than advance and develop" collective bargaining. UKAPE's response was to refer a "recognition issue" to ACAS pursuant to section 11 of the Act. On the 3rd October 1977 ACAS announced that they had completed their examination of the issue referred to them by the union and had sent copies of their report to the parties concerned.
The report ended thus:—
"For these reasons [i.e. those stated in the report] we make no recommendation in respect of UKAPE's application under section 11 of the Employment Protection Act 1975, for recognition at W. H. Allen Sons and Co. Ltd.".
Dissatisfied, UKAPE issued a writ in the Queen's Bench Division on the 28th November 1977 in which they challenged the validity of the report and sought declarations that the report was a nullity and that ACAS had failed to discharge its statutory duties. On the 29th June 1978, May, J. delivered a reserved judgment granting the declarations sought. ACAS appealed. On the 17th January 1979 the Court of Appeal upheld the judge. Now ACAS appeals with the leave of the Court of Appeal.
The appeal turns upon an examination of the report against the background of the duties imposed upon ACAS by the statute. The report covers 14 pages and consists of 34 paragraphs and one appendix. It is drafted in language unfamiliar to lawyers, but, no doubt, well understood by management, trade union officials and others concerned in the conduct or study of industrial relations. The history of the dispute, the complex union pattern in the engineering industry which is reflected in the recognition arrangements at W. H. Allen's factory, and the inquiries and consultations of ACAS are set out in the first 13 paragraphs. The views of the EEF and of the unions affected, including, of course, the views of UKAPE, are outlined in paragraphs 14 to 25. In paragraph 26 ACAS explains that it extended its inquiry to include all technical staff as a result of the view of the company that there were difficulties in defining a viable negotiating group along the lines proposed by UKAPE. In paragraph 27 ACAS makes a finding that "in the area claimed by UKAPE there was an overwhelming wish to have terms and conditions determined by collective bargaining: i.e 84% of [those who answered its questionnaire]". ACAS further finds that 106 employees in the area of the UKAPE claim (79 per cent of those who answered) wanted UKAPE to represent them, and concludes that UKAPE has very strong support not only within the area of its claim but within the wider technical group. Paragraph 28 summarises the views of the company and the CSEU staff unions: they believed recognition of UKAPE would lead to "fragmentation" of collective bargaining in the industry. The report notes that this was also the view of the EEF. The conclusions of ACAS are set out in paragraphs 31 to 34. Paragraph 31 emphasises that the wishes of the workers concerned are always an important factor; but other factors have also to be taken into account:—
"… for example the shape of any negotiating group, the organisational structures and employment policies designed by management, the views of all the parties concerned and any existing bargaining procedures including industry wide arrangements to which the employer is a party.".
Paragraph 32 contains a specific reminder of the overall duty with which ACAS is charged by section 1(2) of the Act. The last sentence of paragraph 33 expresses the conclusion which leads logically to the refusal to recommend recognition of UKAPE:—
"Any recommendation for the recognition of a trade union in W. H. Allen "must be consistent with established collective bargaining arrangements in "the company and industry.".
Finally in paragraph 34 ACAS sums up its conclusions as follows:—
"34. In our view recognition of UKAPE by the company for collective bargaining for the staff covered by their claim, would be inconsistent with the existing procedural arrangements established in the company and within the industry. A recommendation in favour of UKAPE would lead to further fragmentation of these arrangements and would not in our view promote the improvement of industrial relations. We also cannot disregard the implications for industrial relations within the engineering industry of any recommendation which would be strongly opposed by the EEF and the CSEU representing respectively the great majority of the employers and workpeople in the industry. Engineering is of critical importance to Britain and its system of industrial relations has been developed voluntarily for more than one hundred years. Both...
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