QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
(on the application of Ultraframe (UK) Limited
- and -
|CENTRAL ARBITRATION COMMITTEE
- and -
(3) ANNE HOCK
Mr Thomas Linden (instructed by the Treasury Solicitor) for the Defendant
Mr Gerard McDermott QC and Mr James Boyd (instructed by Fairclough Alexander) for the GMB
Hearing dates: 27th and 28th January 2004
Crown Copyright ©
Davis J :
The legal framework
(1) This paragraph applies if—
(a) the CAC proceeds with an application in accordance with paragraph 20 or 21, and(b) the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union (or unions).
(2) The CAC must issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.
(3) But 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 in which the workers constituting the bargaining unit are asked whether they want the union (or unions) to conduct collective bargaining on their behalf.
(4) These are the three qualifying conditions—
(a) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;(b) a significant number of the union members within the bargaining unit inform the CAC that they do not want the union (or unions) to conduct collective bargaining on their behalf;(c) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.
(5) For the purposes of sub-paragraph (4)(c) membership evidence is—
(a) evidence about the circumstances in which union members became members;(b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.
(1) This paragraph applies if—
(a) the CAC proceeds with an application in accordance with paragraph 20 or 21, and(b) the CAC is not satisfied that a majority of the workers constituting the bargaining unit are members of the union (or unions).
(2) The CAC must give notice to the parties that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether they want the union (or unions) to conduct collective bargaining on their behalf.
(1) This paragraph applies if the CAC gives notice under paragraph 22(3) or 23(2).
(2) Within the notification period—
(a) the union (or unions), or(b) the union (or unions) and the employer,
may notify the CAC that the party making the notification does not (or the parties making the notification do not) want the CAC to arrange for the holding of the ballot.
(3) If the CAC is so notified—
(a) it must not arrange for the holding of the ballot,(b) it must inform the parties that it will not arrange for the holding of the ballot, and why, and(c) no further steps are to be taken under this Part of this Schedule.
(4) If the CAC is not so notified it must arrange for the holding of the ballot.
(5) The notification period is the period of 10 working days starting—
(a) for the purposes of sub-paragraph (2)(a), with the day on which the union (or last of the unions) receives the CAC's notice under paragraph 22(3) or 23(2), or(b) for the purposes of sub-paragraph (2)(b), with that day or (if later) the day on which the employer receives the CAC's notice under paragraph 22(3) or 23(2)
(1) This paragraph applies if the CAC arranges under paragraph 24 for the holding of a ballot.
(2) The ballot must be conducted by a qualified independent person appointed by the CAC.
(3) The ballot must be conducted within—
(a) the period of 20 working days starting with the day after that on which the qualified independent person is appointed, or(b) such longer period (so starting) as the CAC may decide.
(4) The ballot must be conducted—
(a) at a workplace or workplaces decided by the CAC,(b) by post, or(c) by a combination of the methods described in sub-paragraphs (a) and (b),depending on the CAC's preference.
(5) In deciding how the ballot is to be conducted the CAC must take into account—
(a) the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace or workplaces;(b) costs and practicality;(c) such other matters as the CAC considers appropriate.
(6) The CAC may not decide that the ballot is to be conducted as mentioned in sub-paragraph (4)(c) unless there are special factors making such a decision appropriate; and special factors include—
(a) factors arising from the location of workers or the nature of their employment;(b) factors put to the CAC by the employer or the union (or unions).
(8) An order under sub-paragraph (7)(a) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(9) As soon as is reasonably practicable after the CAC is required under paragraph 24 to arrange for the holding of a ballot it must inform the parties—
(a) that it is so required;(b) of the name of the person appointed to conduct the ballot and the date of his appointment;(c) of the period within which the ballot must be conducted;(d) whether the ballot is to be conducted by post or at a workplace or workplaces;(e) of the workplace or workplaces concerned (if the ballot is to be conducted at a workplace or workplaces).
(1) An employer who is informed by the CAC under paragraph 25(9) must comply with the following three duties.
(2) The first duty is to co-operate generally, in connection with the ballot, with the union (or unions) and the person appointed to conduct the ballot; and the second and third duties are not to prejudice the generality of this.
(3) The second duty is to give to the union (or unions) such access to the workers constituting the bargaining unit as is reasonable to enable the union (or unions) to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved.
(4) The third duty is to do the following (so far as it is reasonable to expect the employer to do so)—
(a) to give to the CAC, within the period of 10 working days starting with the day after that on which the employer is informed under paragraph 25(9), the names and home addresses of the workers constituting the bargaining unit;(b) to give to the CAC, as soon as is reasonably practicable, the name and home address of any worker who joins the unit after the employer has complied with paragraph (a);(c) to inform the CAC, as soon as is reasonably practicable, of any worker whose name has been given to the CAC under paragraph (a) or (b) but who ceases to be within the unit.
(5) As soon as is reasonably practicable after the CAC receives any information under sub-paragraph (4) it must pass it on to the person appointed to conduct the ballot.
(6) If asked to do so by the union (or unions) the person appointed to conduct the ballot must send to any worker—
(a) whose name and home address have been given under sub-paragraph (5)(b) who is still within the unit (so far as the person so appointed is aware),any information supplied by the union (or unions) to the person so appointed.
(7) The duty under sub-paragraph (6) does not apply unless the union bears (or unions bear) the cost of sending the information.
(8) Each of the following powers shall be taken to include power to issue Codes of Practice about reasonable access for the purposes of sub-paragraph (3)—
(a) the power of ACAS under section 199(1);(b) the power of the Secretary of State under section 203(1)(a).
(1) If the CAC is satisfied that the employer has failed to fulfil any of the three duties imposed by paragraph 26, and the ballot has not been held, the CAC may order the employer—
(a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and(b) to do so within such period as the CAC considers reasonable and specifies in the order.
(2) If the CAC is satisfied that the employer has failed to comply with an order under sub-paragraph (1), and the ballot has not been held, the CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.
(3) If the CAC issues a declaration under sub-paragraph (2) it shall take steps to cancel the holding of the ballot; and if the ballot is held it shall have no effect.
begin until a date which falls after the end of the decision period.
(1) This paragraph applies if the holding of a ballot has been arranged under paragraph 24 whether or not it has been cancelled.
(2) The gross costs of the ballot shall be borne—
(a) as to half, by the employer, and(b) as to half, by the union (or unions).
(3) If there is more than one union they shall bear their half of the gross costs—
(a) in such proportions as they jointly indicate to the person appointed to conduct the ballot, or(b) in the absence of such an indication, in equal shares.
(4) The person appointed to conduct the ballot may send to the employer and the union (or each of the unions) a demand stating—
(a) the gross costs of the ballot, and(b) the amount of the gross costs to be borne by the recipient.
(5) In such a case the recipient must pay the amount stated to the person sending the demand, and must do so within the period of 15 working days starting with the day after that on which the demand is received.
(6) In England and Wales, if the amount stated is not paid in accordance with sub-paragraph (5) it shall, if a county court so orders, be recoverable by execution issued from that court or otherwise as if it were payable under an order of that court.
(7) References to the costs of the ballot are to—
(a) the costs wholly, exclusively and necessarily incurred in connection with the ballot by the person appointed to conduct it,(b) such reasonable amount as the person appointed to conduct the ballot charges for his services, and(c) such other costs as the employer and the union (or unions) agree.
(1) As soon as is reasonably practicable after the CAC is informed of the result of a ballot by the person conducting it, the CAC must act under this paragraph.
(2) The CAC must inform the employer and the union (or unions) of the result of the ballot.
(3) If the result is that the union is (or unions are) supported by—
(a) a majority of the workers voting, and(b) at least 40 per cent of the workers constituting the bargaining unit,the CAC must issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.
(4) If the result is otherwise the CAC must issue a declaration that the union is (or unions are) not entitled to be so recognised.
(5) The Secretary of State may by order amend sub-paragraph (3) so as to specify a different degree of support; and different provision may be made for different circumstances.
(6) An order under sub-paragraph (5) shall be made by statutory instrument.
(7) No such order shall be made unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament."
(1) If the CAC represents to the Secretary of State that paragraph 22 or 87 has an unsatisfactory effect and should be amended, he may by order amend it with a view to rectifying that effect.
(2) He may amend it in such way as he thinks fit, and not necessarily in a way proposed by the CAC (if it proposes one).
(3) An order under this paragraph shall be made by statutory instrument.
(4) No such order shall be made unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament""
Paragraph 167 provided that the Secretary of State may issue guidance to the CAC as to the way in which it exercises its functions under paragraphs 22 and 87. Paragraph 171 (headed "CAC's general duty") provides as follows:
In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned."
"s 15 Power to amend Schedule A1 to the 1992 Act
(1) Paragraph 166 of Schedule A1 to the 1992 Act (power of Secretary of State to amend that Schedule) is amended as follows.
(2) For sub-paragraphs (1) and (2) substitute-
"(1) This paragraph applies if the CAC represents to the Secretary of State that a provision of this Schedule has an unsatisfactory effect and should be amended.
(2) The Secretary of State, with a view to rectifying the effect-
(a) may amend the provision by exercising (if applicable) any of the powers conferred on him by [paragraphs 7(6), 29(5), 121(6), 169A, 169B] and MIA, or(b) may amend the provision by order in such other way as he thinks fit.
(2A) The Secretary of State need not proceed in a way proposed by the CAC (if it proposes one).(2B) Nothing in this paragraph prevents the Secretary of State from exercising any of the powers mentioned in sub-paragraph (2)(a) in the absence of a representation from the CAC."
(3) In sub-paragraph (3), for "this paragraph" substitute " sub-paragraph (2)(b)"."
"Your completed Ballot Paper should be returned to REACH the Independent Scrutineer Popularis Ltd, 12 Kingsmill Business Park, Chapel Mill Road, Kingston Upon Thames KT1 3GZ not later than 10am on 28th April 2004"
The period of the ballot, I add, had been decided, and notified on 18th March 2004, by the CAC (see paragraph 25(9) of the Schedule). Popularis had on 1st April 2004 been provided with a list of all relevant employees by the company (accepted as an accurate list).
"CENTRAL ARBITRATION COMMITTEE
ULTRAFRAME (UK) LTD – GMB & URTU
Result of ballot:
Do you want the GMB & URTU to be recognised for the purposes of collective bargaining on your behalf?
Yes 160 No 137 Spoilt ballot papers 3 Total ballot papers received 300 Total eligible to vote 409 Dispatch Valid names and addresses on initial list 413 Supplementaries (initial envelope not received) 4 New entrants 2 Leavers 6 TOTAL DISPATCH 419 Returned as gone away 0
I am satisfied that the arrangements made with respect to the production, storage, distribution, return and other handling of the voting papers used in the ballot and the arrangements for the counting of the votes, included all such security arrangements as were reasonably practicable for the purpose of minimising the risk that any unfairness or malpractice might occur.
No complaints, irregularities or unusual occurrences were brought to the attention of the Qualified Independent Person.
It may be noted that Schedule A1 does not in fact require a certificate of such a kind by the QIP (contrast the situation with regard to union ballots under s.231B of the 1992 Act); but no one disputes that that accurately represented Ms Hock's position. It was the figures set out in this letter announcing the result that identified the failure to achieve (by 4 votes) the requisite 40% turnout figure of the bargaining unit.
"We feel it is necessary to make clear the position of Ultraframe regarding the events following the completion of the balloting process.
We want to make it very clear that we feel that every employee has had ample opportunity to vote on whether they wish to be represented by the GMB union.
- On every noticeboard there is a poster urging people to vote and to contact Human Resources if they have not received a ballot paper. A number of people did this and were able to vote.
- At the union briefings during the access period the union officials told everyone to contact them if they had not received a ballot paper to ensure that they voted.
- All union members and non-union petitioners were also provided with cards by the union prompting them to vote and asking them to indicate how they had voted.
- There were also union activists encouraging their work colleagues to vote while full time union officials were onsite during the access period.
- JCC representatives were advising employees on how to vote if they had not received a ballot paper "
In the light of these points, the high degree of publicity about the vote and the fact that the postal ballot took place over 14 days, it is beyond our comprehension that anyone who did want to vote was not given the opportunity to do so"
The letter also went on to state unhappiness in the delay that had occurred in formally finalising the result of the ballot; and querying why the complaint of the unions had been made after the ballot had concluded rather than on (if not the day before) the day of the ballot (if ballot papers had not been received); and suggesting that the unions, but not the company, had been tipped off about the result prior to formal notification to the CAC. The letter went on
"We are very clear that everyone in the business has had the opportunity to vote in the ballot and therefore the allegation that some people may not have received ballot papers does not, in our opinion, prevent them from having voted. We would therefore refute any claim that this should lead to a hold a [sic] further ballot. The whole recognition process has been disruptive to our business and the extending of the process unnecessarily is also of serious concern"
It is easy to understand the company's sentiments as expressed in this letter. One can also understand the position of the unions on the footing, if it be right, that had the necessary ballot-papers been received the necessary four votes would have been cast to achieve a declaration of recognition.
The hearing and decision of the CAC
"… Paragraph 23 (2) sees to us to specify the sort of ballot the CAC must organise, i.e. it must be a secret ballot; the question to be asked, i.e. whether those voting are in favour of the applicant unions conducting collective bargaining on their behalf; and the people whose opinions are to be canvassed, i.e. the 'workers constituting the bargaining unit' – not some of them but all of the them [sic].
31. We think that paragraphs 22(3) and 23(2) are absolutely central to the structure of the legislation, which places the final decision on recognition or no recognition in the hands of the workers themselves. It is therefore of central importance that the ballot which determines the final stage of the recognition decision should comply with the standards laid down in paragraphs 22 and 23. It follows in our view that, whenever a reference is made subsequently in Part I of the Schedule to 'the ballot' or to 'the results of the ballot', the reference is to a ballot conducted in accordance with the statutory standards. Accordingly, the simple communication and arithmetic duties imposed on the Panel apply only in the case of a ballot which meets those standards. Where those standards have not been met, paragraph 29 cannot be determinative of what the CAC should do.
32. What is the position of the CAC in such as case? At least where the CAC becomes aware of a departure from the statutory standards before it issues a declaration of recognition, which is the situation in this case, we take the view that the CAC has the power, indeed probably the duty, to take steps as to the conduct of the existing ballot (if the ballot period has not ended) or to order a new ballot (if it has) in order to ensure that the statutory standards are satisfied. It may be that Ms Mountfield is correct to argue that, once the ballot is closed, the QIP is functus officio and we cannot seek to re-open that ballot and alter its results. However, although the union made such an argument in its written submissions, it expressly resiled from it at the hearing and so we do not need to decide the point.
i) The provisions of Schedule A1 confer no general power to conduct what she called "post-hoc" investigations by the CAC as to whether a ballot was satisfactory; to assess whether it should be re-run; or to act as an appellate body from decisions or omissions of the QIP.
ii) The statute makes explicit the circumstances where the CAC is to have a role with regard to the conduct of the ballot: for example, in setting the period of the ballot (paragraph 25 (3)) and the method of the ballot (paragraph 25 (4)); and in appointing the QIP (paragraph 25 (2). Further, the CAC is expressly empowered to order remedial steps by an employer (and, in default, may impose a sanction of a declaration of recognition), where the ballot has not been held. In such circumstances, she submits, there is no room for an implied general power available to the CAC of supervision of the conduct of the ballot, or general power to withhold a declaration under paragraph 29 (let alone after the ballot has been held).
iii) Paragraph 25 (2) expressly stipulates that the ballot to be arranged under paragraph 23(2) is to be conducted by the QIP. Conduct of the ballot generally is not conferred on the CAC. The CAC's interpretation of paragraph 23 (2) wrongly conflates the duty to appoint the QIP with a power to supervise the QIP.
iv) Paragraph 29 reflects that by being mandatory in its terms. Once the QIP has informed the CAC of the result, the CAC must as soon as reasonably practicable make the consequential declaration. At that stage, on being informed of the result, the CAC has no power itself to make an investigation before deciding whether or not to make the declaration.
v) The CAC wrongly concluded that it had power to review the ballot; whereas any power of review is confined to the Court. In her colourful phrase the CAC went "off piste" in concluding that it had the power to order a re-run of the ballot.
i) The CAC was justified in interpreting paragraph 23 (2) as conferring on it the power to supervise the conduct of the ballot and to order a re-run where appropriate.
ii) The statute should be purposively read. It is the policy behind the provisions of Schedule A1 that disputes of this kind should be referred to, and as necessary resolved by, the CAC (and not by the courts). Reading the statute purposively, the necessary jurisdiction in favour of the CAC could and should be found in the statutory provisions. Further, the fact that Schedule A1 expressly gave certain powers to the CAC with regard to the conduct of the ballot did not preclude the CAC from having other and wider powers.
iii) The words "as soon as is reasonably practicable" used in paragraph 29 should be read as reflecting the entitlement of the CAC not to make a declaration of recognition (once it had been informed of the result by the QIP) if the CAC considered that there may have been "something wrong" with the ballot.
iv) The approach adopted by the company was legalistic; invited court action rather than relatively informal and speedy conciliation; and was not in the "real world".
Decision on Jurisdiction
i) First, it seems to me a wholly artificial interpretation to give to the phrase "as soon as is reasonably practicable" which in my view is designed to convey the requirement that, in temporal terms, the CAC must act immediately, so far as it practicably can. There is a clear purpose in that – to achieve speedy finality. The words cannot, in my view, be twisted so as to interpret them as meaning in effect "provided it is satisfied nothing has gone wrong with the ballot" or "provided it considers it appropriate to do so".
ii) Second, Mr Linden's argument is predicated on the proposition that something has indeed "gone wrong" with the ballot (or, as the CAC put it, when the CAC "becomes aware of a departure from the statutory standards"). But that is, as Ms Mountfield submitted, in itself tendentious. Mere assertions of irregularity by a disappointed employer or employee or union do not prove something has "gone wrong" or that there has been a departure from the "statutory standards" – they may, for example, sometimes just be a stalling tactic (I am not, I stress, talking about this particular case). Mr Linden's argument connotes that the CAC must, notwithstanding that the QIP has been satisfied with the ballot process and informed the CAC of the result, consider, and if necessary investigate, all complaints. Indeed, in the present case Mr McDermott submitted that it would have been "irrational" for the CAC not to have done. But that approach could simply operate to be an inducement to parties to lodge complaints with the CAC, to forestall the making of a declaration. At all events, I can see no compelling purposive arguments which require a departure from the words Parliament has chosen for paragraph 29.
i) First, it pays scant regard to the provisions of paragraph 29 of Schedule A1. The CAC said shortly (in paragraph 31 of the decision) that "paragraph 29 cannot be determinative of what the CAC should do". But that simply, with respect, seems almost to assume that the purpose of the provisions generally is to confer a general supervisory jurisdiction on the CAC. It does not really address the express mandatory wording of paragraph 29 or explain from where the asserted power to order a re-run is derived. Nor does that reasoning in terms confront the provision in paragraph 25 (2) that the ballot must be conducted by the QIP.
ii) Second, the CAC states in paragraph 32 of its decision that it "has the power, indeed probably the duty" to take steps as to a ballot "where it becomes aware of a departure from the statutory standards". But that, with respect, rather begs the question. The CAC cannot (as I have already indicated) become aware that there has been "a departure from the statutory standards" until there has been a determination after an investigation or hearing. Until then, the CAC is simply confronted with an alleged departure from the statutory standards. It is not explained how the mere making of an allegation can of itself cause the provisions of paragraph 29 not to be followed or how it gives rise to a jurisdiction in favour of the CAC to decide whether or not the ballot had been properly conducted.
iii) Third, I regard the reading of paragraph 23 (2) favoured by the CAC as not merely "ingenious": to my mind, it is very strained. Paragraph 23 (2) – which uses the same words as paragraph 22 (2) – in my view is emphasising that the CAC must, in the specified circumstances, arrange the secret ballot. The following words "in which the workers constituting the bargaining unit are asked whether they want the union (or unions) to conduct collective bargaining on their behalf" are, as I see it, naturally to be read as descriptive of the nature and purpose of the ballot to be arranged, and are not in themselves to be read as words of obligation or function on the part of the CAC. That also accords with the provisions of paragraph 25 and, specifically, the stipulation that the ballot is to be conducted by a QIP. (It may be noted, in passing, that the reasoning of the CAC also seems to require as a first step that the words in paragraph 23(2) "are asked whether" are instead to be read as saying "are given the reasonable opportunity of voting as to whether").