QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF GATWICK EXPRESS||(CLAIMANT)|
|CENTRAL ARBITRATION COMMITTEE||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented.
Crown Copyright ©
"The CAC must issue a declaration that the union is (or unions are) recognised ...."
if one or other of two conditions is satisfied. The second condition (b) is that:
"The CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union"
"If any of the three qualifying conditions is fulfilled, instead of issuing a declaration under sub-paragraph (2) the CAC must give notice to the parties that it intends to arrange for the holding of a secret ballot."
"A significant number of the union members within the bargaining unit inform the CAC that they do not want the union .... to conduct collective bargaining on their behalf."
"I would like to assert to you that I am against any union recognition for Gatwick Express management and this letter is evidence of this fact."
"The panel takes the view that although the letters were addressed to the CAC they had not been received by the CAC. It is the Panel's opinion that there are difficulties in attesting to the validity of employee opinion when workers are required to indicate their views to their employer either by returning a pre-typed and named letter opposing recognition to the Senior Executive responsible for HR, or if they were in favour of recognition, being instructed not to return the letter. Accordingly the Panel places no evidential weight on the letters that were produced at the hearing."
The letter went on to conclude that the one letter which it had received direct from a Union member did not amount to a significant number so as to satisfy condition 22(4)(b). It went on to add:
"It is significant that none of those who signed the letter opposing recognition had resigned from the union. Indeed evidence had been provided that one further manager in the bargaining unit had recently rejoined the union."
Accordingly, the panel found the condition was not met.
(1) It imported into paragraph 22(4)(b) a requirement that the CAC has to be informed direct by a worker pursuant to that paragraph and in writing.
(2) In the absence of any suggestion that any of the union members were compelled to sign and return the letters, and in the face of covering letter which made it clear they were not so compelled, it is said that the CAC panel's implication that the validity of the employee's opinion is extinguished is either wrong in law or is perverse.
(3) The fact that the panel was happy to accept as evidence, and take into account, the one letter which was sent direct by a union member even though it was in identical terms and produced in the same way, except that it was sent direct rather than through the conduit of the claimant's Human Resource Department, is also used in support of the contention that the CAC's approach was either wrongful or perverse.
(4) The passage in paragraph 36 which asserts that, although the letters were addressed to the CAC, they had not been received by the CAC, is said to be perverse in the sense that it was absolutely plain that the CAC had received the letters because they were before the panel.
(5) It is said that the panel took into account an irrelevant factor. That was the fact that none of the authors of the seven letters had resigned from the union. This has helped form their decision to give no weight whatsoever to the letters which those seven had signed, and returned to their employer, knowing that they would be submitted to the CAC as evidence of their objection to recognition being granted.
"....informal, non-legalistgic and conducive to good industrial relations rather than litigation. The process under schedule under A1 is designed to encourage a speedy momentum rather than delays. The intervals between successive stages are specified and they are short."
"This is a matter that CAC would take very seriously as a matter of principle. If the CAC's decision is quashed, the panel will reconsider in accordance with the guidance from the Administrative Court. I would respectfully submit that it is wholly inappropriate for the court to order .... for the CAC to act in accordance with its obligations and for the court to decide." (Quote unchecked)
The letter concluded by stating that he had prepared it, possibl prematurely, on the point of his departure on 1 August without knowing whether it was necessary Mr Laddie has pointed out, matters have developed quite significantly since 1 August because there is now before the court an agreement between the claimant and the interested party, the TSSA, which sets out the order that they are both agreed the court should make. It is a document signed on behalf of the TSSA on 7 August and on behalf of Gatwick Express with today's date. The terms of the agreed order they invite the court to make are:
1. The claimant be granted permission to proceed with the application for judicial review.
2. The decision of the panel of the CAC promulgated on 11 July 2003, in which the panel declared that the TSSA be recognised by the claimant as entitled to conduct collective bargaining on behalf of the bargaining unit be quashed.
3. The panel give notice to the parties that it intends to arrange for the holding of a secret ballot pursuant to paragraph 22(3) of Schedule A1 to the Trade Union Labour Relations (Consolidation) Act 1992 and hold a secret ballot in accordance with the relevant provisions of Schedule A1. That is the remedy which the claimants have sought throughout. This particular element of the remedy is the one which gave Sir Michael Burton concern sufficient for him to write to the court.