England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE SWEENEY

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th February 2010

Lord Justice Leveson:

1. Milford Haven is one of the largest oil and gas ports in Northern Europe. It is a very important conduit for the supply of crude oil, refined product, liquefied natural gas and liquid petroleum gas into the United Kingdom. Together, with a mix of other traffic, some 60 million gross tonnes of shipping use the port each year.
2. Pilotage is compulsory within the haven for all ships or tug and tow combinations of 50 metres or more in length overall with only minor exceptions. Certain vessels over 65,000 gross tonnes, and all vessels over 80,000 gross tonnes, are provided with two pilots. The Milford Haven Port Authority ("the authority"), which is a public trust harbour and pilotage authority, is responsible for navigation, safety and traffic regulation of all vessels navigating within the haven and employs some 200 people. Of these, 18 pilots, 24 launch crew and coxswains, 4 marine maintenance staff and 11 port control officers and operators are, in the main, members of the trade union Unite the Union ("the union"). Most of the other staff are not members of this union. For some time concern has arisen relating to the final salary pension scheme affecting most marine administrative staff amounting to some 70 people, and for some months there have been negotiations between the authority and their staff regarding the structure of a new pension scheme. Starting from 1 October 2009, following a briefing session, there has been formal consultation with all employees and also with the trade union representatives. On 17 December, following the consultation, proposals were put to the staff providing three options. According to the evidence of the chief executive of the authority, the majority of the staff signed up to one of these options, although many of the marine staff did so "under protest".
3. In January 2010 the union gave notice of their intention separately to ballot their members in port control, launch crews and the pilots. They did so. As to the pilots, 17 of the 17 who voted did so in favour of participation of strike action, and 16, with one invalid vote, voted in favour of participation in action short of a strike. The chief executive was told that the port control staff voted against taking strike or other industrial action. As to the launch crew, 18 of the seamen, seamen relief mates, jetty hands, watch fitters and coxswains voted in favour of participation in a strike with 7 against. The vote in relation to participation action short of a strike was 22 in favour and 3 against.
4. On 10 February the union sent the chief executive two letters giving notice of industrial action. One was incorrectly dated 10 January -- although no point arises on that error -- and related to the pilots. The other was accurately dated and related to launch crews. The heart of this action is whether these letters constitute due and proper notice of industrial action within the provisions of the Trade Union Labour Relations Consolidation Act 1992 ("the Act"). The authority took the view that they did not, and on 16 February sought an urgent injunction. The union was served and attended before Sweeney J yesterday, 17 February. He accepted the submissions made on behalf of the authority and granted an injunction.
5. The union now appeal that order contending that the learned judge erred in his construction of the legislation and that the matter required urgent attention not only because of the importance of the industrial action in this case but also because of the significant uncertainty that will follow from a decision in relation to issues of industrial action. Mummery LJ granted permission yesterday afternoon and the appeal has been brought on today. Thus, when it is necessary to do so, the court can act with appropriate expedition. In the event, during the course of today, agreement was received between the parties as to this industrial action but the union have pursued this appeal (the authority taking no part) because the issues of principle which arise.

The legislative framework

6. It is not challenged that the industrial action proposed by the Union is in furtherance of a trade dispute within the meaning of Section 244 of the Act, and neither is it suggested that, in calling the industrial action, the union would not be inducing breaches of contracts of employment between its members and the respondent and the authority. The union was therefore entitled to rely on Section 219 of the Act to gain statutory protection against the tort of inducing breach of contract and other torts, if substantiated, so long as it satisfied the requirements of the Sections identified in Section 219, amongst which is Section 234A, which requires notice to be given to the employer of the industrial action to be taken. Section 234A(3)(b) requires that the notice specifies whether the proposed industrial action is continuous or discontinuous and is the only point at issue on this appeal.
7. The material parts of Section 243A of the Act are as follows:

" (1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action is not protected as respects his employer unless the union has taken or takes such steps as are reasonably necessary to ensure that the employer receives within the appropriate period a relevant notice covering the act.

(2) Subsection (1) imposes a requirement in the case of an employer only if it is reasonable for the union to believe, at the latest time when steps could be taken to ensure that he receives such a notice, that he is the employer of persons who will be or have been induced to take part, or continue to take part, in the industrial action.

(3) For the purposes of this section a relevant notice is a notice in writing which --

(a) describes (so that he can readily ascertain them) the employees of the employer who the union intends to induce or has induced to take part, or continue to take part, in the industrial action ("the affected employees"),

(b) states whether industrial action is intended to be continuous or discontinuous and specifies—

(i) where it is to be continuous, the intended date for any of the affected employees to begin to take part in the action,

(ii) where it is to be discontinuous, the intended dates for any of the affected employees to take part in the action, and

(c) states that it is given for the purposes of this section.

(4) For the purposes of subsection (1) the appropriate period is the period --

(a) beginning with the day when the union satisfies the requirement of section 231A in relation to the ballot in respect of the industrial action, and

(b) ending with the seventh day before the day, or before the first of the days, specified in the relevant notice.

(5) For the purposes of subsection (1) a relevant notice covers an act done by the union if the person induced is one of the affected employees and --

(a) where he is induced to take part or continue to take part in industrial action which the union intends to be continuous, if --

(i) the notice states that the union intends the industrial action to be continuous, and

(ii) there is no participation by him in the industrial action before the date specified in the notice in consequence of any inducement by the union not covered by a relevant notice; and

(b) where he is induced to take part or continue to take part in industrial action which the union intends to be discontinuous, if there is no participation by him in the industrial action on a day not so specified in consequence of any inducement by the union not covered by a relevant notice.

(6) For the purposes of this section --

(a) a union intends industrial action to be discontinuous if it intends it to take place only on some days on which there is an opportunity to take the action, and

(b) a union intends industrial action to be continuous if it intends it to be not so restricted."

8. The code of practice on industrial action ballots and notice to employers, pursuant to Section 208(2) of the Act which came into force on 18 September 2000, contains the following:

"50. If the union decides to authorise or endorse industrial action following a ballot, it must take such steps as are reasonably necessary to ensure that any employer who it is reasonable for the union to believe employs workers who will be, or have been, called upon to take part in the action receives no less than seven days before the day specified in the notice as the date on which workers are intended to begin to take part in continuous action or as the first

date on which they are intended to take part in discontinuous action a written notice from the union which:-

• is given by any officer, official or committee of the union for whose act of inducing industrial action the union is responsible in law (an indication of whom this might cover is given in Annex 1 to this Code);

• specifies: (i) whether the union intends the action to be "continuous" or "discontinuous"14; and (ii) the date on which any of the affected employees are intended to begin to take part in the action (where it is continuous action), or all the dates on which any of them are intended to take part (where it is discontinuous action);

• states that it is a notice given for the purposes of section 234A of the 1992 Act; and

• contains either [lists of categories of employees]

14 For these purposes, industrial action is "discontinuous" if it is to involve action other than on all the days when action might be taken by those concerned. An indefinite strike would, therefore, be

"continuous"; an overtime ban might be "continuous" or "discontinuous", depending on whether the ban applied to overtime working on all the days on which overtime would otherwise be worked or to overtime working on only some of those days."

9. These provisions and the proper approach to them have been subject to judicial consideration. In Westminster City Council v Unison [2001] EWCA Civ 443 [2001] IRLR 524 Buxton LJ, agreeing with Pill LJ who gave the main judgment, dealt with an argument that a common sense approach was prevented by the words of the statute by observing, at paragraph 79:

"We should look with great caution at such an argument about a statute such as this, which is a statute directed to industrial relations designed to enable workers and employers to conduct their affairs in a sensible and efficient way."

10. Further, the legislative purpose of this provision and Section 226A(2)(c), which concerns the notice of the ballot, was explained by Robert Walker LJ, as he then was, in NURMT v London Underground [2001] IRLR 228 at paragraph 45 in terms that it was:

"…to enable an employer to know which part or parts of its workforce were being invited to take industrial action, in order that the employer could (first) try to dissuade them and (secondly, and so far as unsuccessful in its first aim) make plans to avoid or minimise disruption and continue to communicate with the relevant part or parts of the workforce."

This analysis was followed in Metrobus Limited v Unite the Union [2009] EWCA Civ 829 [2009] IRLR 851 (see per Lloyd LJ, paras 37-45).

The challenge

11. In this case the material terms of the notice in identical form for both classes of employers was as follows:

"This action will be continuous and discontinuous. The continuous action will consist of an overtime ban, work to rule, not providing a call out service, not covering absenteeism and withdrawal of goodwill will commence on February 18th 2010 at 6am. In addition, our members concerned will not handle any ships of more than 65,000 gross tonnes from 6am on the 20th February 2010. The discontinuous action will consist of a 48 hour stoppage commencing 6am on February 18th 2010, concluding 6am on February 20th 2010."

12. On behalf of the authority before Sweeney J it was contended that the notices were seriously defective in two respects. First, it was argued that the Act requires the notice to state whether the industrial action is intended to be continuous or discontinuous. There is no scope for a single notice to state that both forms of action are intended as these notices purport it to do. The second defect concerned a purported noticed that both continuous or discontinuous industrial action was said to be going to take place at the same time from 6am on 18 February 2010, whereas that cannot have been intended. I deal with these two challenges separately.

Continuous or Discontinuous

13. Before the learned judge the authority argued that the words of the statute were clear: a notice must specify disjunctively either continuous action or discontinuous action; there is no place for one to specify both. Sweeney J agreed. The union, on the other hand, submit that it is entirely appropriate to have both forms of action in one notice: what is critical is that, in respect of each proposed industrial action, it is made clear whether it is continuous or discontinuous. Mr Hendy QC, who appears in this court but did not appear before the learned judge, forcefully suggests that it is simply untenable to require two notices to be put in the same envelope or to deny the union protection simply because the relevant officer failed to take a pair of scissors and cut between the relevant paragraphs to create two notices.
14. In my judgment section 234A(3)(b) is disjunctive only in relation to particular action specified in a notice. In other words, in relation to any identified action the notice must clearly specify whether that action will be continuous or discontinuous so that the employer can understand precisely what is intended and when, so as, following the explanation provided by Robert Walker LJ in relation to employees, to try to dissuade and or, alternatively, to make plans to avoid or minimise the disruption. Further, the contrary contention would be more likely to generate confusion rather than clarity. More than one notice might cause concerns as to which is to be effective. In addition, it would inevitably permit one notice for more than one action so long as all were either continuous or discontinuous, but not if one was continuous but the other discontinuous. To that extent, therefore, I would disagree with the learned judge and hold that one notice was sufficient for both continuous and discontinuous action, providing, of course, that the notice otherwise satisfied the requirements of the legislation.

The same starting point

15. There is no doubt that the notice specifies that the continuous (lesser) action is due to start at the same time as the discontinuous (greater) action of the two-day strike. The authority submitted to the learned judge that, according to the notice, from 6am on 18 February 2010 to 6am on 20 February 2010, the union's members will refuse to perform some of the usual requirements of their role: an overtime ban, work to rule, not providing a callout service, not covering absenteeism and withdrawal of goodwill, which presumes that they will perform all other elements of their work during that time. However, at the same time the notice states that the members will not work at all, so that two forms of inconsistent action are specified as the same period. In that regard the chief executive in his evidence said that the authority was unclear as to what action the unions members intended to take and would take between these times and dates and so was unclear "as to how best to try to cover for the industrial action which is going to take place".
16. Before Sweeney J, who also accepted this submission, it was conceded that the legislation required that both continuous and discontinuous action should not be carried out simultaneously and that the notices could have been more happily phrased. On the other hand, it was said that what was clearly intended was discontinuous action from 18 to 20 February and continuous action thereafter. Mr Hendy QC does not accept that the concession that continuous and discontinuous action should not be carried out simultaneously is accurate and puts the matter more forcefully. He submits that, although the notice could have set out in terms that the indefinite continuous action would commence on 20 February rather than 18 February, it was self-evident from the fact that there was to be an all-out strike on 18 and 19 February that discontinuous action could not occur on these dates.
17. In my judgment, to say that the notice could have set out the position accurately is to put the matter far too low. The notice should have set out the intended position accurately. It should not need to be a matter of inference or assumption as to which part of the action will bite at which time; neither is it difficult to achieve. It simply requires the union to pay proper attention to the very important notice that it is giving -- notice of its intended action, which will allow it to avoid what would otherwise be unanswerable liability at the very least for the tort of inducing breach of contract.
18. On the face of it, the union could choose, using such ability to choose in the course of negotiation -- should they go for an all-out strike on the 18th and 19th or should they only take the less grave but still very serious continuous action from 6 am on 18 February? They had given notice of both. While recognising that in this case the notice was inaptly and incorrectly drafted, Mr Hendy submits by way of rationalisation that it is perfectly proper to give such notice, thereby leaving open to the union the subsequent decision as to which action to take. Because of the agreement between the parties, which we entirely respect, Mr Cohen has not submitted a contrary argument, and for my part I consider the argument not straightforward to resolve and in any case moot. In the circumstances I would leave it open.

Conclusion

19. Because of the agreement between the parties the injunction which Sweeney J granted is no longer necessary. In the circumstances we discharge it. As was explained to the learned judge and is apparent from the papers before us, however, the union has served fresh notices on behalf of the pilots of discontinuous strike action between 6am and 6pm on 23 February 2010 and continuous strike action will commence at 7pm on 23 February. Nothing he or I have said affects any issue as to the validity of these notices. Thus this industrial dispute goes on. Both sides have powerful arguments. The authority needs to address the deficits in its final salary scheme. All those who work at the port, and in particular the pilots whose job is absolutely critical to the safe navigation of enormous vessels through the very difficult haven, have legitimate rights to the contractual terms under which they are employed. Speaking for myself, the continued and successful development of the operation of the authority at the haven sits above these interests. I would therefore encourage all parties to continue to engage with ACAS and seek to resolve these issues through negotiation rather than action with the potential serious adverse consequences that might follow.

Lord Justice Laws:

20. I agree that the appeal should be dealt with and disposed of in the manner described by Leveson LJ in the particular circumstances of the case. I agree with him entirely on the point as to whether notice of separate, continuous and discontinuous action can be given in the same document, so to speak. I also agree with him that the second point in the case, which might be put as to whether notice can be given at the same time on what may turn out to be an alternative basis of continuous or discontinuous action, or for that matter of more than one kind of either continuous or discontinuous action, is a point with potentially wider importance which, before it is decided, merits fuller consideration and debate than has been possible on this appeal. Accordingly that is a point that should be left open for further argument as and when it may arise.

Lord Justice Lloyd:

21. I also agree that this appeal should be disposed of in the manner proposed and for the reasons given by my Lord, Leveson LJ.

Order: Appeal dismissed