England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/04/2007

Mr. Justice Teare:

1. This is an application by the Claimant for an injunction restraining the Defendant from committing one or more economic torts. The causes of action relied on are clear from the draft order sought but are not mentioned in the Claim Form. Counsel for the Claimant undertook to amend the Claim Form.
2. The Defendant has immunity from suit in respect of the threatened torts since they would be acts done in contemplation or furtherance of a trade dispute (see Section 219(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA)) but only so long as the Defendant has conducted a ballot as required by section 226 of the Act. In essence the case of the Claimant is that the ballot conducted by the Defendant pursuant to a ballot notice dated 7 March 2007 was not in accordance with section 226, that the Defendant therefore would have no immunity from suit in respect of industrial action taken pursuant to that ballot, that the balance of convenience lies in favour of restraining the threatened industrial action and therefore the requested injunction should be issued. The Defendant maintains that its ballot complied with section 226, that it is therefore immune from suit and that in any event the balance of convenience lies in favour of refusing the requested injunction.
3. Section 221(2) of TULRA provides that where an application for an interlocutory injunction is made and the party against whom it is sought claims that he has acted in contemplation or furtherance of a trade dispute, the court shall "have regard to the likelihood of that party's succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219."
4. The manner in which a court should apply this section was considered by the House of Lords in NWL Ltd.v Woods [1979] ICR 867. Lord Diplock rejected the submission that the likelihood of the defendant establishing a defence at trial was an overriding factor in the sense that an injunction should be refused once it appears to the court that the defence is more likely to be established than not. However, the degree of likelihood of success of establishing the defence was clearly relevant. Lord Diplock said:

"Judges would, I think, be respecting the intention of Parliament in making this change in the law in 1975, if in the normal way, the injunction were refused in cases where the defendant had shown that it was more likely than not that he would succeed in his defence of statutory immunity; but this does not mean that there may not be cases where the consequences to the employer or to third parties or the public and perhaps the nation itself, may be so disastrous that the injunction ought to be refused, unless there is a high degree of probability that the defence will succeed."

Lord Fraser said:

"The word likelihood is a word of degree and the weight to be given to the likelihood of establishing the defence will vary according to the degree of the likelihood. If the court considers that the respondent is virtually certain to establish the trade dispute defence, it will naturally give more weight to this factor than if it considers the prospect of successfully establishing the defence is doubtful. In my opinion therefore the effect of section 17(2) is that the court in exercising its discretion should have regard to the balance of convenience including the likelihood (and the degree of likelihood) of the respondent's succeeding in establishing the defence of trade dispute, and then come to a decision on the whole matter."

5. The Claimant is a well known manufacturer of double glazed windows, doors and conservatories. Its principal place of business is at the Airport Industrial Estate, Norwich where it has six production units. They are entirely separate and self contained. There is a further fabrication factory in Rochdale. One of the units at the Norwich site is Unit 13 in respect of which there is a dispute between the Claimant and the Defendant as to the pay rates of the dayshift, in particular the "foil rate". The pay scheme is separate from that which applies to the night shift. It is also different from the schemes in other units on the site.
6. On 7 March 2007 the Defendant sent a notice to the Claimant. It stated that the Defendant intended to hold a ballot and that the first day of the ballot would be 15 March 2007. The Claimant was informed of the employees entitled to vote. They were in 2 groups. Firstly there were 82 "members on check-off" in units 13,14,15,17 and 19. They paid their subscriptions to the Defendant via the check-off system, that is, via the Claimant. In addition there were 187 members not on the check-off system. The notice said:

"The information in GMB's possession relating to the categories to which the 187 employees concerned belong and the workplaces at which they work is as follows: all of these 187 direct debit/cash payment members are employed by you at Anglian Windows Ltd., Units 13,14,15,17 and 19, PO Box 45, Anson Road, Norwich NR6 6EJ in the following categories of jobs:

Job Category No.

Unit 13 Production Workers 91

Unit 14 Mechanic 1

Unit 15 Engineers 5

Unit 17 Production Workers 3

Unit 19 Glass shop/Production Workers 87

This information was complied from the Union's register of members drawing on information provided by our members. It is subject to possible defects in that we do not regularly gather up-to-date information from our members on their job titles or other categories and/or workplaces and because any turnover in membership may not be immediately reflected in our records. For the avoidance of doubt this is all the information in the Union's possession on those members not on check-off."

7. The ballot took place and on 28 March 2007 the Defendant informed the Claimant of the result. There were 212 votes cast. 191 voted in favour of industrial action with 20 against. There was 1 spoiled voting paper.
8. The first point taken by the Claimant is that where the members entitled to vote do not all have the same workplace separate ballots are required for each workplace; see section 228. The Claimant said that each unit is a separate workplace and therefore not all those members entitled to vote had the same workplace. There should have been separate ballots for each unit or workplace. There was not and therefore the proposed industrial action would not have the required "support of a ballot" by section 226 of TULRA.
9. It is first necessary to consider who is entitled to vote. Entitlement to vote is dealt with by section 227 of TULRA.

"Entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced by the union to take part or, as the case may be, to continue to take part in the industrial action in question and to no others."

10. It is the case of the Defendant that at the time of the ballot it was reasonable for the union to believe that those in units 13,14,15,17 and 19 would be induced to take part in the industrial action. Although the pay rates of those in unit 13 were different from the pay rates in other units, Mr. Mercer, the Regional Organiser of the Defendant, has stated that the foil rates in unit 13 have an effect on every "average paid" employee's pay. Mr. Hansen, the Managing Director of the Claimant, accepts that the foil rate in unit 13 has an impact on employees other than unit 13 dayshift personnel but states that those other employees are not involved in the dispute and in any event that those in units 14 and 17 and the backshifts in units 13 and 19 are not affected by the foil rate in unit 13.
11. Determination of those entitled to vote ("the electorate") is not dependent upon whether an employee is involved in the dispute but upon whether the Defendant believes that the employee will be induced to take part in the dispute; see section 227 of TULRA. It seems that the Defendant believes that all those who were asked to vote will be induced to take part in the industrial action. They may be mistaken as to whether all are affected by the foil rate in unit 13 but it seems that there is no dispute that some are.
12. It is then necessary to determine whether all those in the electorate have the same workplace. If they do not, then separate ballots in each workplace are required; see section 228(1) and (3) of TULRA. Sub-section (4) defines workplace as follows:

"In this section and section 228A "workplace" in relation to a person who is employed means-

(a) if the person works at or from a single set of premises, those premises, and

(b) in any other case, the premises with which the person's employment has the closest connection."

13. Whilst this section states how the court must approach an employee who works at or from a single set of premises as compared with an employee who does not, it does not further define workplace or a single set of premises. I am told that there is no authoritative guidance on the meaning of workplace or single set of premises in the context of section 228 (though there are cases in which the courts have considered earlier versions of TULRA).
14. The Defendant's primary argument is that the workplace of all employees in the "electorate" is the site occupied by the Claimant at the Airport Industrial Estate in Norwich. If that is right then there is and was no requirement for separate ballots at units 13, 14, 15 17 and 19. It seems to me that there is considerable force in this contention. The business of the Claimant is conducted at two sites, one in Norwich and the other in Rochdale. It would be natural for those who work at any of the units occupied by the Claimant at the Airport Industrial Estate to regard their workplace as that Estate in Norwich. Those who work in Rochdale would plainly have a different workplace from those who work at Norwich. Further, although there is no uniform contract of employment, the most recent form (and some earlier forms) expressly refers to the place of work as "Norwich". (The employer reserves the right to move the employee to work "at any of other Norwich sites". It is difficult to know what significance, if any, can fairly be attached to the mention of "other Norwich sites" because I was told during the course of argument that at present there are no other Norwich sites in addition to that at the Airfield Industrial Estate though there was at least one other in the recent past.)
15. The Claimant disputes that the Airfield Industrial Site can properly be regarded as the workplace of all of the employees requested to participate in the ballot. The Claimant maintains that the workplace of each employee is the unit in which he or she works. Mr. Hansen has given evidence to the effect that employees are employed at individual units and that different activities are carried on at the various units. Each unit has it own car park and shop steward. Employees are assigned to a particular unit and their pay slip indicates the unit at which they work.
16. These matters enable the Claimant to argue, with some force, that in any discussion between employer and employee the workplace of an employee is likely to be expressed in terms of the unit in which the employee works.
17. Both contentions are seriously arguable. On this application I have to have regard to the likelihood (which encompasses the degree of likelihood) of the Defendant succeeding at trial. I consider it more likely than not that the Defendant's contention will be upheld at trial.
18. The second point taken by the Claimant is that the notice of the ballot was defective in that, contrary to section 226A(2A) of TULRA, it failed to contain an adequate "list of the categories of employee to which the employees concerned belong." The description of the 91 employees in Unit 13 was said to be inadequate because it did not describe the functions of the employees in sufficient detail to enable the Claimant to plan a response to the strike. The employees in unit 13 include line workers, fitters, electricians, progress chasers and so forth. Mr. Hansen believes that the employees' job titles are in fact known to the Defendant as job titles are "requested on the GMB membership form."
19. Section 226A(2D) provides that the lists must be "as accurate as is reasonably practicable in the light of the information in the possession of the union" and section 226A (2E) provides that 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."
20. In paragraph 15 of the "Code of Practice on Industrial Action Ballots and Notice to Employers", which I am told is a document to be taken into account when applying the provisions of TULRA, it is stated:

"There are many ways to categorise a group of employees. When deciding which categories it should list in the notice, the union should consider choosing a categorisation which relates to the nature of the employee's work. For example, the appropriate categorisation might be based on the occupation, grade or pay band of the employees involved. The decision might also be informed by the categorisations of the employees typically used by the employer in his dealings with the union. The availability of data to the union is also a legitimate factor in determining the union's choice."

21. This suggests that the appropriate category might be quite detailed (hence the reference to grade or pay band) but that the availability of data to the union might be a limiting factor on the amount of detail the union could be expected to give. This is consistent with sections 226A(2D) and (2E) of TULRA.
22. In the present case Mr. Mercer has accepted that

"whilst …….the description of production workers doesn't identify the particular roles carried out be each of the GMB members, the GMB doesn't have the requisite information to distinguish between the categories of workers. The label attached to them is the best that the GMB can do in the circumstances."

23. Thus Mr. Mercer seems to recognise that the categorisation he has given is not sufficiently detailed but that the Defendant can do no better. There is a dispute as to whether the Defendant can do better. Indeed, Mr. Hansen has gone so far as to suggest that the Defendant has

"deliberately chosen to call the members "production workers" because it knows the difficulty that will cause in planning for the strike."

24. This factual dispute cannot be resolved on this application. I note that not only does Mr. Mercer say the Defendant can do no better but that the text of the notice itself expressly stated

"For the avoidance of doubt this is all the information in the Union's possession on those members not on check-off."

25. Having regard to the terms of the notice, the evidence of Mr. Mercer and to the fact that the Claimant has assumed the heavy burden of alleging that the Defendant is, in effect, not acting in good faith I have reached the conclusion that at present it is more likely than not the Defendant will establish at trial that the categorisation of workers in unit 13 as production workers was the best that the Defendant could do on the information in its possession.
26. It follows that I consider it more likely than not that the Defendant will establish at trial that it is immune from suit. As explained by Lord Diplock in NWL Ltd.v Woods this suggests that the injunction sought by the Claimant should be refused. The Claimant submits that if the strike goes ahead it is likely to suffer financial loss and its customers will suffer delay in having products delivered to them. I agree this is likely. But, as Lord Fraser observed in NWL Ltd. v Woods I have to have regard to "the balance of convenience including the likelihood (and the degree of likelihood) of the respondent's succeeding in establishing the defence of trade dispute". When I take into account that it is more likely than not that the Defendant will succeed in establishing its immunity from suit then the damage which might be suffered by the Claimant must carry less weight.
27. These considerations are sufficient to persuade me that it is right to refuse the Claimant's application for an injunction. But in any event it is to be observed that there was a very substantial majority in favour of strike action. If a further ballot (or ballots) were to take place in accordance with the wishes of the Claimant it is more likely than not that there would still be a majority in favour of a strike and so the losses feared by the Claimant would still be suffered without the possibility of redress.
28. I therefore refuse the Claimant's application for an injunction. I will hear the parties as to costs and any other ancillary matters.