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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> EDF Energy Powerlink LTD v National Union of Rail Maritime and Transport Workers (NURMTW) [2009] EWHC 2852 (QB) (23 October 2009)
URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/2852.html
Cite as: [2009] EWHC 2852 (QB), [2010] IRLR 114
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IN THE HIGH COURT OF JUSTICE HQ09X04637.
(QUEEN'S BENCH DIVISION)
[2009] EWHC 2852 (QB)
Royal Courts of Justice,
Strand,
London WC2A 2LL.
Friday, 23rd October 2009.
Before:
MR JUSTICE BLAKE
EDF ENERGY POWERLINK LTD Applicants
- v -
NATIONAL UNION OF RAIL MARITIME AND TRANSPORT
WORKERS Respondents
____________________
MR TIMOTHY BRENNAN QC (instructed by Lewis Silkin LLP, 5 Chancery Lane, Clifford's
Inn, London EC4A 1BL) appeared on behalf of the Applicants.
MR JOHN HENDY QC and MR MARCUS PILGERSTORFER (instructed by Thompsons
solicitors, 23 Princess Street, Manchester M2 4ER) appeared on behalf of the Respondents.
____________________
Tape Transcription by:
John Larking European Verbatim Reporters,
(Verbatim Reporters and Tape Transcribers)
Suite 91, Temple Chambers, 3-7 Temple Avenue,
London EC4Y 0HP.
Tel: 020 7404 7464 Fax: 020 7404 7443 DX: 13 Chancery Lane LDE
____________________
JUDGMENT
(As Approved)
(amended)
-1-
© Crown Copyright 2009
Friday, 23rd October 2009.
JUDGMENT:
MR JUSTICE BLAKE:
01 This is an application on notice by the Claimant, EDF Energy Powerlink, for interim
relief to prevent the Defendant union, the RMT, from calling a strike on the basis of a
ballot that it conducted amongst its members employed by the Claimant between 1-22
October this year. The central question is whether the Defendant trade union gave
sufficient information to the employer to discharge its duty of notification under the
relevant provisions of the Trade Union and Labour Relations Consolidation Act 1992 as
amended ("the Act") that would thus enable any strike action to be protected by statute
and qualify for exemption from tortious liability, and thus amounting to a lawful strike
call.
02 Mr Hendy QC, appearing for the RMT at short notice, submitted a skeleton argument and
made oral submissions on at least two other issues: (1) whether the construction of the
Act relied upon by the employer infringed the right to strike that was enforceable in
domestic law, (2) whether relief should in any event be refused as premature in the light
of the fact that the ballot had not yet concluded as of the hearing of the argument on 22nd
October. He pointed out that no result is known; no decision has yet been made to call a
strike; and in particular no strike notice has been issued. I propose to deal with those two
matters first before returning to the principal issue. As to the first, the court has the
benefit of the decision of the Court of Appeal in Metrobus Ltd v UNITE the Union
[2009] EWCA CIV 829, [2009] IRLR 851, a judgment given earlier this year. At para.
37 of his judgment, Lord Justice Lloyd says this:
"English law does of course recognise a right to strike and exempts trade unions
from tortious liability that they would otherwise be under for calling a strike. The
relevance of the jurisprudence of the ECHR on Mr Hendy's submissions is that the
restrictions on the ability of a trade union to call a strike must stand up to scrutiny
under para. 2 of Article 11. They are of course prescribed by law, but are they
necessary in a democratic society in the interests mentioned in the paragraph? In
other words, are they proportionate?"
There is then a review of relevant human rights jurisprudence and a conclusion that the
particular requirements of notification and other duties in the context of that case were
indeed proportionate.
03 I observe that in addition to the developing jurisprudence on the question under Article 11
of the European Convention of Human Rights, which is implied into domestic law by the
Human Rights Act, there is also the express provisions of the Charter of Fundamental
Rights of the European Union that has been in existence since 2000 as stating to reflect
common principles in the Union and may, become a binding source of obligation. Article
28 says that:
-2-
"Workers and employers or their respective organisations have in accordance with
Community law and national laws and practices the right to negotiate and conclude
collective agreements at the appropriate levels and in cases of conflict of interest to
take collective action to defend their interests including strike action."
But the right to strike, as is made apparent, is not absolute and can be defined according
to national law, and proportionate derogations from it may be permissible as other
provisions of Article 52 of the Charter makes plain.
04 In Metrobus as the court concluded that the requirements as to pre-strike notification and
ballots were not onerous or oppressive and did not unduly restrict the exercise of the right
to strike. I would accept for present purposes Mr Hendy's submission that locating the
interpretation of the legislation within the context of an important right could be a pointer
to construction in a debateable case and could be a guide to avoid unreasonable
requirements being imposed upon the union that might otherwise be said to interfere with
the right. It may also in appropriate cases be relevant to discretion whether any failure by
the Defendant is merely a technical one and has no material impact upon the employer"s
ability to make use of the information. But for reasons that follow, in my judgment,
neither consideration requires further exploration on the facts of this case.
05 The particular decision in Metrobus also further points out that the obligations on unions
of notification are at least three-fold: (1) there is an obligation of notification to the
employer of information when a ballot is being called - Section 226(1)(a) of the Act, and
Section 226(A)(2)(C); (2) notification to the employer of the results of the ballot as soon
as is reasonably practicable - Section 231 of the Act; (3) notification to the employer of a
decision to call a strike within 28 days of the ballot and giving at least seven days" notice
in a strike notice - Section 234(A) of the Act. In Metrobus the trial judge had found
breaches of the second and third duties; the Court of Appeal concluded that the breaches
as regard the third duties were immaterial but nevertheless the trial judge was entitled to
grant an injunction on the breach of the duty to give notification of the results of the
ballot as soon as is reasonably practicable. Pausing there, it appears, therefore, that even
though the employer had been given seven days" notice of a strike by a notice which the
Court of Appeal did not conclude was materially defective, the failure to give the results
of the ballot as soon as reasonably practicable was a sufficient failure to justify the
injunction. Thus it would appear that a failure to give any one of the notices required by
the duty may result in the grant of the injunction. In the present case, it is submitted that
there was a failure at the first stage, which is the only stage that had been reached - the
giving of the information to the employer about the ballot to be conducted as to whether
there would be a strike. It is apparent that the requirements about ballots are a material
part of the lawfulness of strike action (See Section 290(4) of the Act) and if that failure is
made out, it would afford the proper foundation for the exercise of discretion to grant an
injunction.
06 Addressing the submission that it would be premature to consider any relief at all, the
court notes that the sequence of events described in the evidence suggest a rapid moving-
on from the first existence of a dispute about pay negotiations in the middle of September
2009 to a ballot which does at least lead to the threat of strike action within a short period
of time in the future. Admittedly, for the reasons Mr Hendy gave, the threat at present is
a contingent threat but given the potential periods of time involved -no less than seven
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and no more than 28 days - I would assess that in all the circumstances the risk of
unlawful strike action in breach of the statute (if that is what it turns out to be) would be
sufficiently imminent to justify what used to be called quia timet injunctions. In that
context, it is material to note that the workers who were being balloted are a group of
technicians who work in the Claimant's installations that supply electrical power to the
London Underground tube system. The implications of a shutdown of the relevant parts
of the Claimant's workplace are therefore substantial and would have widespread
ramifications elsewhere. The Claimant submits that it is entitled to as much notice of
possible strike action as the statute provides in order to be able to respond in any way it
thinks fit to that threat, which includes - but is not limited to - contingency plans for
alternative labour to keep the system going.
07 With those other issues disposed of for the present purpose at the outset, I now return to
the principal issue in dispute, and first address the evidence upon the question. The
Claimant relies upon the evidence of its employment relations manager Mr Myers, and
his witness statement reveals that there are 270 permanent staff employed by the
Claimant in a variety of roles. It also reveals that there are at least three workplace sites
involved in the present dispute, Tufnell Park, Central London and Waterloo. There are a
number of different unions recognised in different sites for different purposes. Moreover,
the Claimant does not operate a check-off system, viz., deduction of union subscriptions
from pay, in respect of any of its employees; therefore it is said the Claimant does not
know and is unable to determine which of its employees belong to the respective trade
unions with whom it negotiates. It is probably sufficient for the purpose of deciding the
central issue in this case to focus upon the arrangements at Tufnell Park. The Claimant
there employs 155 staff, of whom five are titled administrative staff, but the majority of
the employees there are described in the following terms: "Fitters, jointers, test room
inspectors, day testers, shift testers or OLBI fitters." In general terms the employees at
Tufnell Park are described as craft staff. It is going to become apparent when further
material is examined that the Defendant informed the Claimants that it had 52 members at
Tufnell Park, 52 therefore out of 155, and it claims a total of 64 members at all three sites.
08 On 24th September 2009, notice of a ballot under Section 226(A) of the Act was given by
the Defendant through its General Secretary Bob Crowe. The text reads:
"This union reasonably believes the opening day of the ballot will be Thursday 1st
October 2009. The members of this union who will be entitled to vote in the ballot
are all those members of this union employed by the company in the category of
engineer/technician. A list of the categories to which affected employees belong,
the numbers in each category and workplaces of affected employees and the
numbers at each workplace (and the total number of employees concerned) is set
out below."
The categories are "Engineer/technician 64" and then the three workplaces are identified
including in particular Tufnell Park. It is said:
"The list and figures set out above has been arrived at by retrieving information
from the union's membership database as to the categories of workplace and
members and the numbers in each, the database having been altered and updated
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for the purpose of the statutory notification balloting requirements to ensure
accuracy."
09 To that letter the Claimant responded on 25th September, the following day. Amongst the
points that were made is that "We do not believe your ballot notice complies with the Act
"as we are not able to identify the category of union members you propose to ballot.""
Other points were made. To that letter the General Secretary of the Defendant union
replied on 2nd October, stating: "The union is not obliged to use the same categorisation of
job description as that chosen by the employer." There is then a reference to the Code of
Practice to which further regard will be had later in this judgment, and continues:
"I do not believe that you will have any difficulty in identifying the groups of
employees covered by the categorisation and used by the union. As you already
acknowledge, you recognise who is employed as an engineer. I believe the
information the union has provided in terms of job descriptions is more than
sufficient for you to be able to establish which job descriptions have been balloted
over the failure to make a reasonable pay order."
10 There was then a reply on 13th October at which time it was pointed out what the union
had done the previous year when there had been an earlier notice of ballot in respect of
some of the workers at the Tufnell Park site. In that letter, which should have been dated
9th October 2008 though in fact there was an acknowledged typographical error, the
information was given as follows:
"The members of this union who will be entitled to vote in the ballot are all
members of this union employed by the company as shift tester staff and categorised
in our membership database as engineer/technicians employed at the Tufnell Park
workplace. There are 25 such members. The figure given has been arrived at by
retrieving information from the union's membership database as to the categories
and workplaces of members, the database having been altered and updated for the
purposes of the statutory notification and balloting requirements to ensure
accuracy."
It can be seen therefore that in 2008 in respect of 25 engineer/technicians employed at
Tufnell Park the union identified shift tester staff, which corresponded to one of the
categories mentioned by Mr Myers in his witness statement in the present proceedings.
11 On 16th October, the General Secretary responded to the point about different terminology
used in the 2008 ballot and said:
"There is no obligation on the union to use the same description of job category that
it has in previous ballots. The only obligation on the union is to set out the
categories of members to be balloted and their numbers."
He points out that there was a particular reason why the more detailed description was
given in 2008 because it concerned a parity claim with other groups. That same point is
repeated in the witness statement filed by Mr Crowe for the purpose of these proceedings.
The point is also made in that witness statement that engineer/technician is a recognised
class of skill across the industry generally. The RMT denies that it has job descriptions
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more detailed than engineer/technician in its computer database or that it obtained the
more detailed job description used in 2008 from its database. Despite the wording, of the
letter already quoted the Claimant produced edited extracts of its current database which
do not apparently show any recording of job description beyond engineer/technician save
in one respect where in one column the words TRI are added which may well be Test
Room Inspectors, which is one of the classes identified in Mr Myers" statement.
12 Mr Hendy QC nevertheless accepts it was perfectly possible for the union to contact the
shop stewards at the workplace and to discover the particular function in which the
employee is engaged, and suggests that that is how the information had been obtained in
the previous year. It is a small workplace, but he submits that what is practical and
possible is not the test of what is required.
13 Against that factual background, it is necessary now to turn to the law. I will treat as
having been read into this judgment the whole of the following Sections of the Act -
Section 226(1) and Section 226(A) from subsection (1) through to subsection (2)(e). It is
pertinent to observe that the requirement of a list of categories spelled out in Section
222(A)(2)(a) is mirrored in some respects by the requirements to give notice to employers
of industrial action under Section 234(A) and I will treat as being read into this judgment
subsections (1) (2) (3) (3a) (3b) and (3c) of that Section as well as subsection (5b). The
Act itself does not define what is meant precisely by categories of employee.
14 By Section 207 of the Act, the court deciding disputed questions is required to take into
account the provisions of a Code of Guidance issued by the Secretary of State under
Section 203. The material Code was issued in October 2005. Paragraph 15 of that Code
is in the following terms:
"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 employees" work. For example,
the appropriate categorisation might be based on the occupation, grade or pay
grade of the employees concerned. 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 choices."
15 Some further judicial guidance on the ambit of categories can be obtained from a decision
in 2001, Westminster City Council v UNISON [2001] EWCA CIV 443, [2001] IRLR 524. That was
a case about a ballot notification sent in respect of a group of workers who
could be described as advice and assistance workers working in a particular location
concerned with housing questions. The Deputy High Court Judge had granted the
employer an injunction on two grounds, the second of which was that the notice served on
the employers had not satisfied the requirements of Section 226(A) because it failed to
identify the category of workers sought. The Court of Appeal allowed the appeal and
discharged the injunction. Lord Justice Pill said:
"54. The legislative purpose was "to enable an employer to know which parts or
part of its workforce were being invited to take industrial action" para. 45.
-6-
"55. The word "category" was not defined by Lord Justice Robert Walker in the
London Underground case nor was it necessary for him to do so. Equally, it is not
necessary for this court to attempt a comprehensive definition.
"56. In my judgment, it is clear that the requirement was met upon the facts of the
case and that the requirement as to "category" was sufficiently met in the
information provided. The number of staff involved was only 45. They were
identified as A and A workers. The relevant staff are said to be those in the
assessment and advice community. While not identified by name, information was
provided by reference to the DOCAS system by which the individual identities could
easily be ascertained by the employers. It is not suggested that different professions
or trades are involved within the AA unit."
I give emphasis to the words in that last sentence.
16 Lord Justice Pill had earlier in his judgment, referred to the decision of the Court of
Appeal in the London Underground case [2001] IRLR 228. It is sufficient to quote
Lord Justice Pill at para. 51 where he quotes Lord Justice Walker at para. 47 of the
London Underground case:
"If the amendments are approached in that way, it becomes clear that the judge
was right to interpret information as to the number, category or workplace of the
employees concerned in such a way as to provide the employers with information
which was useful to them. The usefulness of the information is seriously reduced if
an employer is simply told 5000 employees, all grades, all workplaces, without the
additional information which could be conveyed by a grid or spreadsheet with
different categories (as appropriate) listed at the side and different workplaces
listed at the top and the appropriate numbers filled in."
17 The Court of Appeal in the Westminster case noted the material differences in the facts.
In Westminster Lord Justice Buxton gave a concurring judgment and said the following
at paras. 78-79:
"As to the matter of the notice, the genesis of the present form of Section 226(A) of
the Act is explained in the judgment of Lord Justice Robert Walker in this court in
the London Underground case, some considerable part of which my Lord has set
out. One of the reasons for the present form of the Section, as Lord Justice Robert
Walker recognised, was to avoid what might otherwise have been an obligation
upon the union to give actual lists of names of the persons who were going to take
industrial action. The reason why notification is required is to enable amongst
other things, the employer to make plans in relation to proposed actions. I would
assume that that is directed as his ability to cope with the practical difficulties
caused to him if the action takes place. For that purpose, he needs to know who is
going to be on strike and who is not. What the union has to tell him, if it knows,
includes the categories of employees affected by the action. That is my judgment is
a very broad word and not to be either exclusively or narrowly defined. It means
no more than a reference to the general type of workers. In this case, by means of a
reference to the DOCAS deduction system, the employer actually had, or was given
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access to a nominal role of those who were going to be taking the action, something
that was more than the statute in its revised form intended.
"79. It is wholly artificial in those circumstances to say that the Union should have
given details of job descriptions and status of employees of the sort to which my
Lord has referred. It is much more reliable from an employer's point of view if,
having been given the names, he himself with his superior knowledge of the way in
which his operation works, decides into what categories and into what sections
those persons fall ... we should look with great caution at such an argument about a
statute as this, which is a statute directed at industrial relations, designed to enable
workers and employers to conduct their affairs in a sensible and efficient way."
18 Clearly, a number of the comments in Westminster were predicated upon the fact that
that was a check-off case, because the employer knew precisely who the members of the
union were in that case. That is a contrast to the present case. As noted already in the
statute, there is a different obligation in check-off cases, in either non-check-off cases or
mixed check-off cases. However, taking the guide to how category should be interpreted
by those observations collected in the Westminster case, in my judgment the following
propositions emerge:
(1) By contrast to the Westminster case, the present case is a case where it seems
that different trades were being employed at Tufnell Park, and therefore in the
absence of any other information through the check-off system or otherwise the
employer would be entitled to know who was being balloted in respect of those
trades and who might be called out pursuant to ballot in an industrial dispute.
(2) This is not a case where what the Claimant is submitting should have been
provided is either a detailed job description of the members of the trade or details of
the employer's organisation of those trades it employs, for example, who is going to
work on a particular shift or under which particular manager.
(3) on these facts there is substance to the Claimant's point that it would make a
material difference to the employer if he had to face the risk, for example, of a test
room inspector withdrawing his labour as opposed to a fitter. Although the court
has not been informed in any detail of what the contrasting functions are, it is not
difficult to imagine that they may have different skills, different roles in the
operation, and the loss of one may have significantly different effects to the loss of
the labour of another.
(4) If a decision is taken to strike, and a strike notice actually issued, and the third
broad duty identified in the statute might then come into play with duties to give a
strike notice under Section 234(A) identifying under subsection (3)(A)(a) a list of
categories of employee to which the affected employees belong. It is possible those
categories might be different from those categories who had been balloted in the
first place. However, the fact that the same term of "category" is employed in both
Section 226(A) and Section 234(A), in my judgment, has some significance. A
trade union might decide in order to further the objectives of its trade dispute only
to call out one category of worker, for example, the test room inspector. But the
fact that it is the test room inspectors who might be called out if matters developed
-8-
to that level is an indication that such similar categories about which the employer
needs to be notified at the start of the sequence of duties in order to make its
preparations and to respond in any way it thought appropriate.
(5) Whilst para. 15 of the Code of Guidance indicates that the way in which the
union categorises its members is relevant, it is expressly indicated that it is not
decisive. It is therefore not the only circumstance that is to be put into the mix in
order to find out what is the relevant category in a particular case. A similar point
may be being made in Section 226(A)(d) in the statute, which states that the list and
figures must be as accurate as is reasonably practicable in the light of the
information in the possession of the union at the time when it complies with the
subsection. It may very well be that the information as to which trades may be
called out is not recorded in the union's database, but that is not the only
consideration as to what is reasonably practicable in terms of accuracy of the
information it supplies to the employer.
(6) The duty on the union is not an absolute one, and a purposive and context-
sensitive construction suggests overall that only a duty to do their reasonable best to
address the essential criteria and to explain as far as they can how they got to the
information that it supplies.
(7) Therefore, the fact that the union does not record the information and may not
be in its possession may be highly material in considering whether the duty has
been discharged or an injunction granted, but it is not necessarily always decisive.
If otherwise was the case then there would be a temptation for the trade unions to
record minimal information in their record-keeping of members in order to diminish
the content of the duty to supply categories to the employer, and simply say "Since
we do not record it, we have no duty to supply anything other than quite broad
descriptions of which it could be said that engineer/technician is one." The
Claimant has some suspicions that something might have happened between 2008
and 2009 but I reach no conclusion on that.
(8) In the present case, as Mr Hendy QC readily accepted, it is practicable to supply
the information in the context of a small employment place with a shop steward or
local representative more intimately connected with the working practices than the
branch secretary. I conclude that a requirement to do so does not impose an
onerous or unreasonable burden.
19 Putting all those conclusions together, I conclude that in the present case the particular
descriptions that the Claimant was seeking appear to fall into the category of trade rather
than job description. I conclude that the Claimant has demonstrated that the requirement
to give notice under Section 226(A) have not been met. Therefore, although I have to
have regard to the prospects of the Defendant successfully raising the statutory Defence at
a trial, I conclude those prospects would be poor. It does not necessarily follow that an
injunction should be granted or an injunction granted in the terms presently sought by the
Claimants as there is some substance in the submission that there has been no stated
intention to call a strike irrespective of either the court's decision on this topic or indeed
generally, and there has been no present inducement to break contracts of employment.
But I recognise that the Westminster case was in the context of a first-stage duty, the
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notification of the ballot. There is a clear nexus between the failure to discharge that first-
stage duty and the employer's ability to respond to it, either by making preparations in the
event that a strike is called or indeed making representations to those who are to be
balloted as to why in the particular circumstances they might not want to vote one way as
opposed to another. It is clearly, therefore, not a technical or immaterial breach in the
present case. No undertaking of course has been offered by the union in this case not to
consider calling a strike on the basis of this ballot and for reasons previously given I
consider that the prospects of a strike and the consequences of an unlawful strike are
sufficiently imminent to consider this is an application properly made and deserving of
relief. My present conclusion is that it would be sufficient relief for the Claimants to be
granted relief that would restrain the Defendants from calling a strike notice on the basis
of this ballot, but obviously I will hear counsel on the matter.
________________
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