Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 114
P650/11	OPINION OF TEMPORARY JUDGE J BECKETT QC in the Petition of UNITED CLOSURES AND PLASTICS LIMITED Petitioner; for Interdict and interim interdict ­­­­­­­­­­­­­­­­­________________

Petitioner: Hardman, Advocate; Maclay Murray and Spens, Solicitors

Respondent: McShane, Advocate; Thompsons, Solicitors

20 June 2011

Introduction

[1] The petitioner, United Closures and Plastics Ltd, sought interim interdict against Unite the Union, the respondent, in respect of discontinuous strike action scheduled to commence on Wednesday 22 June 2011, in relation to an industrial dispute at the petitioner's premises in Bridge of Allan. The background is that new working conditions will commence on 29 August 2011 which change the shift pattern and, in some cases, wages of workers in what are known as the metals and plastics department of the petitioner's manufacturing operation.

[2] The basis of the petition is that the respondent union, having acted in breach of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) sections 226A, 227, and 234A, and therefore being denied the protection contained in section 219 of that Act, would incur delictual liability to the petitioner by inducing employees to breach their contracts of employment by taking strike action.

[3] The petitioner's motion for interim interdict called before me on 14 June 2011. Mr McShane, Advocate, appeared to oppose the motion, there being a caveat in place. At the request of both parties I agreed to continue the case to a hearing on 16 June 2011 and Mr McShane gave an undertaking that proposed strike action on Wednesday 15 June would not take place. Having heard parties' submissions, I continued the case with a view to giving a decision on 20 June 2011. On that date, having been addressed on further matters which I raised with parties, I refused the petitioner's motion for interim interdict. I was asked by Mr Hardman, Advocate for the petitioner, to give my reasons for doing so in writing.

The statutory provisions

[4] The balloting provisions are found in sections 226-235 of the 1992 Act and there is a very helpful analysis of them in paragraphs 15 to 30 of the opinion of the court given by Lord Justice Elias in the Court of Appeal in the case of National Union of Rail, Maritime and Transport Workers v Serco Limited trading as Serco Docklands, The Associated Society of Locomotive Engineers and Firemen v London & Birmingham Railway Limited trading as London Midland, [2011] EWCA Civ 226. Parties referred to this as 'the ASLEF case'. Not all of these provisions are relevant to the motion for interim interdict in this case and I will set out only those parts of the sections which are most germane, and summarise their effect as they apply to this motion as it was presented.

[5] Section 219

219 - Protection from certain tort liabilities.

(1) An act done by a person in contemplation or furtherance of a trade dispute is not actionable in tort on the ground only:-

(a) that it induces another person to break a contract or interferes or induces another person to interfere with its performance, or

(b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or interfere with its performance.

(4) Subsections (1) and (2) have effect subject to sections 222 to 225 (action excluded from protection) and to sections 226 (requirement of ballot before action by trade union) and 234A (requirement of notice to employer of industrial action); and in those sections "not protected" means excluded from the protection afforded by this section or, where the expression is used with reference to a particular person, excluded from that protection as respects that person.

[6] In order for a trade union to be protected under section 219 of the 1992 Act, section 234A and section 226 must be complied with. Mr Hardman indicated, that so far as he was concerned, sections 222-225 were not relevant in this case.

[7] Section 226

226. Requirement of ballot before action by trade union.

(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action.

(a) is not protected unless the industrial action has the support of a ballot, and

(b) where section 226A falls to be complied with in relation to the person's employer, is not protected as respects the employer unless the trade union has complied with section 226A in relation to him.

In this section "the relevant time", in relation to an act by a trade union to induce a person to take part, or continue to take part, in industrial action, means the time at which proceedings are commenced in respect of the act.

(2) Industrial action shall be regarded as having the support of a ballot only if:

(a) the union has held a ballot in respect of the action -

(i) in relation to which the requirements of section 226B so far as applicable before and during the holding of the ballot were satisfied,

(ii) in relation to which the requirements of sections 227 to 231 were satisfied, and

(iii) in which the majority voting in the ballot answered "Yes" to the question applicable in accordance with section 229(2) to industrial action of the kind to which the act of inducement relates;

....

[8] Section 226 requires, inter alia, that there must be the support of a ballot and that, where applicable, the terms of section 226A must be complied with.

[9] Section 226A

226A - Notice of ballot and sample voting paper for employers.

(1) The trade union must take such steps as are reasonably necessary to ensure that -

(a) not later than the seventh day before the opening day of the ballot, the notice specified in subsection (2), and

(b) not later than the third day before the opening day of the ballot, the sample voting paper specified in subsection (2F),

is received by every person who it is reasonable for the union to believe (at the latest time when steps could be taken to comply with paragraph (a)) will be the employer of persons who will be entitled to vote in the ballot.

(2) The notice referred to in paragraph (a) of subsection (1) is a notice in writing -

(a) stating that the union intends to hold the ballot,

(b) specifying the date which the union reasonably believes will be the opening day of the ballot, and

(c) containing -

(i) the lists mentioned in subsection (2A) and the figures mentioned in subsection (2B), together with an explanation of how those figures were arrived at, or

(ii) where some or all of the employees concerned are employees from whose wages the employer makes deductions representing payments to the union, either those lists and figures and that explanation or the information mentioned in subsection (2C).

(2A) The lists are -

(a) a list of the categories of employee to which the employees concerned belong, and

(b) a list of the workplaces at which the employees concerned work.

(2B) The figures are -

(a) the total number of employees concerned,

(b) the number of the employees concerned in each of the categories in the list mentioned in subsection (2A)(a), and

(c) the number of the employees concerned who work at each workplace in the list mentioned in subsection (2A)(b).

(2C) The information referred to in subsection (2)(c)(ii) is such information as will enable the employer readily to deduce -

(a) the total number of employees concerned,

(b) the categories of employee to which the employees concerned belong and the number of the employees concerned in each of those categories, and

(c) the workplaces at which the employees concerned work and the number of them who work at each of those workplaces.

(2D) The lists and figures supplied under this section, or the information mentioned in subsection (2C) that is so supplied, 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 subsection (1)(a).

(2E) For the purposes of subsection (2D) 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.

(2F) The sample voting paper referred to in paragraph (b) of subsection (1) is -

(a) a sample of the form of voting paper which is to be sent to the employees concerned, or

(b) where the employees concerned are not all to be sent the same form of voting paper, a sample of each form of voting paper which is to be sent to any of them.

(2G) Nothing in this section requires a union to supply an employer with the names of the employees concerned.

(2H) In this section references to the "employees concerned" are references to those employees of the employer in question who the union reasonably believes will be entitled to vote in the ballot.

...

[10] In so far as relevant to the present case, section 226A, requires that a union must take such steps as are reasonably necessary to ensure that the employer receives at the specified time before the ballot, written notice containing, inter alia, the figure of the total numbers of employees concerned, subsection (2B) (a). Mr Hardman for the petitioner, made it plain in his submissions that he was concerned with the figures referred to in subsection (2B) (a) and not the lists or categories which are referred to in subsections (2A) and (2B) (b) and (c). Whilst there is nothing to stop the union from giving the names of the members to be balloted, subsection (2G) specifically provides that nothing in the section requires that this should be done.

[11] Subsection (2D) requires that the 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 gives notice that it intends to hold a ballot and 'employees concerned' are defined in subsection (2H) as those employees of the employer who the union reasonably believes will be entitled to vote in the ballot.

[12] It follows from section 226 (2) (a) (ii) that industrial action only has the support of a ballot if the requirements of section 227 are complied with

[13] Section 227

227.- Entitlement to vote in ballot.

(1) 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.

[14] In terms of section 232B, in relation to the ballot, small accidental failures to comply with sections 227 which are unlikely to affect the result of the ballot shall be disregarded. Section 232B does not apply to failures to comply with sections 226A or 234A.

[15] In the ASLEF case, the Court of Appeal observed at paragraphs 78 - 87 that small failures which can be regarded as de minimis do not contravene section 226A and Mr Hardman was content that I should approach this case on that basis.

[16] Section 234A

234A. - Notice to employers of industrial action.

(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) contains -

(i) the lists mentioned in subsection (3A) and the figures mentioned in subsection (3B), together with an explanation of how those figures were arrived at, or

(ii) where some or all of the affected employees are employees from whose wages the employer makes deductions representing payments to the union, either those lists and figures and that explanation or the information mentioned in subsection (3C),

(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.

(3A) The lists referred to in subsection (3)(a) are -

(a) a list of the categories of employee to which the affected employees belong, and

(b) a list of the workplaces at which the affected employees work.

(3B) The figures referred to in subsection (3)(a) are -

(a) the total number of the affected employees,

(b) the number of the affected employees in each of the categories in the list mentioned in subsection (3A)(a), and

(c) the number of the affected employees who work at each workplace in the list mentioned in subsection (3A)(b).

(3C) The information referred to in subsection (3)(a)(ii) is such information as will enable the employer readily to deduce-

(a) the total number of the affected employees,

(b) the categories of employee to which the affected employees belong and the number of the affected employees in each of those categories, and

(c) the workplaces at which the affected employees work and the number of them who work at each of those workplaces.

(3D) The lists and figures supplied under this section, or the information mentioned in subsection (3C) that is so supplied, 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 subsection (1).

(3E) For the purposes of subsection (3D) 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.

(3F) Nothing in this section requires a union to supply an employer with the names of the affected employees.

(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.

(5C) In this section references to the "affected employees" are references to those employees of the employer who the union reasonably believes will be induced by the union, or have been so induced, to take part or continue to take part in the industrial action.

...

[17] Section 234A, so far as relevant, provides that there is no protection for a union unless it ensures that the employer receives notice after the ballot and by the appropriate time before the strike of the total number of affected employees, who are defined in subsection (5C) as those employees who the union reasonably believes will be or have been induced to take part in industrial action.

[18] Subsection (3D) requires that the figures supplied must be as accurate as is reasonably practicable in the light of the information in the possession of the union at the specified time.

[19] Since the section 234A requirement relates to a different point in time, it may be that the figures specified in this notice will be different to those in the notice given in advance of the ballot under section 226A.

[20] In the ASLEF case at paragraph 5, Lord Justice Elias explained the purpose of the Trade Union Act 1984 in this way:

'The purpose of the 1984 Act was to ensure that all the union members whom it is envisaged will participate in the proposed strike should vote in secret on whether they support the strike or not. In short, the strike must have a democratic mandate. Only if there is the appropriate majority which currently is defined as a simple majority of those voting following a lawful ballot will the immunities apply.'

[21] He reviewed the legislative history of the notification requirements in paragraphs 60 to 67 and explained that the rationale behind the notification provisions is to enable an employer to make plans to minimise the effect of a strike and contact employees to seek to persuade them not to agree to strike.

The facts and issues which were not in dispute

[22] Many employees who are union members have their union dues deducted from their wages directly by their employer. This is known as check-off. This process means that the petitioner can identify at least a certain number of its employees as union members. There may of course be other employees who pay their union dues in a different way, but the numbers of these are not identifiable to the petitioner who is dependent on the notice given by the union.

[23] It was accepted on both sides that in its 226A notice of ballot, 6/1 of process, the respondent union indicated that it intended to ballot 149 members, 140 of whom paid by check-off and 9 who paid in other ways. In the notice, the respondent union also categorised the workers according to their job description.

'140 members paying by check-off in the following categories: operators 74, semi-skilled 27, engineers 28, electricians 4, toolmakers 5, storemen 2.

9 members paying by means other than check-off in the following categories: operators 4, semiskilled 1, engineers 4.'

The petitioner took no issue about categorisation, it was the figures which were the contentious issue. Mr Hardman for the petitioner did however maintain that he could demonstrate, prima facie, that the union had not complied with section 226A, in that, as he apprehended it, the constituency had not been adequately identified.

[24] In the course of the hearing, Mr McShane produced to the court and to the petitioner, a list of the members of the union which had been sent to local officers of the respondent union by officers at its office in Bromley. This list contains 172 names, addresses and job titles. By deducting those that it did not intend to ballot, because for example they had left the union or were not involved in the dispute as the respondent union saw matters, this number reduced to 149. Mr Hardman could not dispute that this is what had happened, but he maintained that this adjusted list did not accurately define those who ought to have been included in the ballot.

[25] In correspondence from the respondent union to the petitioner, 6/5 of process, and by Mr McShane in his submissions, it was explained that a further 9 union members came to light after notification had been made, when they asked to be included in the ballot. Those union members had a different union coding and had not been identified from the record sent from the office in Bromley. In the case of one of them it was ascertained that his code had not been changed when he had left different employment. Those 9 persons were permitted to vote, and in the post-ballot notice under s234A, 6/3 of process, it was explained that 158 members would be called on to strike, of whom 145 paid by check-off and 13 by other means. Again the respondent union categorised the workers according to their job description.

145 members paying by check-off in the following categories: operators 77, semi-skilled 27, engineers 30, electricians 4, toolmakers 5, storemen 2.

13 members paying by means other than check-off in the following categories: operators 6, semiskilled 1, engineers 5, supervisor 1.

A copy of the list containing details of the extra 9 members was also furnished to the court and to the petitioner during the hearing.

[26] The notice under s 234A, intimated that in response to a question 'Are you prepared to take part in strike action?', 137 votes were cast: 98 voted yes, 38 voted no and one ballot paper was spoiled. In response to a question 'Are you prepared to take part in industrial action short of a strike,' again 137 votes were cast: 104 voted yes, 31 voted no and 2 ballot papers were spoiled.

[27] The s 234A notice specified that there would be a continuous overtime ban from 7am on Thursday 16 June 2011 and that members would take discontinuous strike action consisting of twenty-five hour stoppages commencing at 7am on each of five consecutive Wednesdays from 15 June 2011. In the event, whilst these proceedings were ongoing, the respondent union gave an undertaking that it would not call the strike on Wednesday 15 June. The petitioner was not concerned to seek interdict in respect of the overtime ban.

Submissions
Petitioner
[28] In this case, the petitioner had identified a number of its employees, in what it regarded as the relevant part of the workforce, who could be taken to belong to the union, because union dues are deducted directly from their wages. Mr Hardman stressed in his submissions that this must be a minimum number, because there may be other union members who pay their dues in some other way, and the respondent union in correspondence with the petitioner, and in its 226A and 234A notices, confirmed that there were a number of employees in that category.

[29] On that basis, and on the basis of its view as to who was entitled to vote, the petitioner maintained that the respondent union had breached the provisions of sections 226A, 227 and 234A of the 1992 Act. Mr Hardman said that the petitioner's position was encapsulated in correspondence, in particular 6/9 of process, a letter from solicitors for the petitioner to the respondent union dated 15 June 2011. It goes into some detail as to which employees would be having changes made to their terms and conditions and which would not, in the view of the petitioner. The theme throughout is that only those employees whose terms and conditions are directly affected were entitled to be balloted and others had been, and that all employees whose terms and conditions were affected must be balloted and some had not been. Similarly, the petition for interdict is based on a premise that a particular constituency of employees must be balloted and that others must not be. This is a question to which I will return.

[30] It is averred in paragraph 7 of the petition that

'...the figures supplied do not accurately represent the numbers of employees who would reasonably be expected to take part in the proposed industrial action. They do not represent the number of employees who the respondent should reasonably have believed would be entitled to vote in the ballot. Contrary to s 227 of the 1992 Act, fifteen staff from the print department and two storemen were accorded entitlement to vote in the ballot. They were not members of the respondent trade union who it was reasonable at the time of the ballot to believe would be induced by the respondent trade union to take part in the proposed industrial action. Contrary to s 227, twenty six staff from the metals and plastics department were not accorded entitlement to vote in the ballot. They were members of the respondent trade union who it was reasonable at the time of the ballot to believe would be induced by the respondent trade union to take part in the proposed industrial action.'

[31] In due course, Mr McShane for the respondent union explained that 15 members of staff from the print department and 2 storemen were people who were balloted because they regarded themselves as being in dispute. According to the respondent, those employees had been told by the petitioner that whilst their shift pattern would not change, their wages would. It was intended by the union that they would be called on to take industrial action. The averment that 26 union members were denied entitlement to vote was disputed.

[32] In relation to the notice in terms of s234A, it is averred in paragraph 9 of the petition that the notice is not a relevant notice in terms of that provision in that the figures supplied were not as accurate as was reasonably practicable in light of the information in the possession of the respondent at the time the notice was received. It is specified that the number identified, 158, is 9 more than that specified in the s 226A notice, namely 149.

[33] Mr Hardman made submissions more or less in line with these averments, although he now thought that at least 22 employees who the petitioner regarded as being affected by changes had not been included in the 226A notice, rather than the 26 referred to in the petition. Whilst he conceded that it was quite impossible at this stage to resolve the dispute on the numbers, the analysis which the petitioner had undertaken, which was set out in a table 6/9 of process, and in an affidavit (number 6/7 of process) from the petitioner's human resources manager, demonstrated that the petitioner had at least a prima facie case. His real complaint related to the section 226A notice, and paragraph 7 of the petition and the consequence that the ballot had both excluded and included people erroneously, in breach of section 227. Any errors, other than the 9 additions, would be carried through to the section 334A notice. The significance of the omission of those 9 persons from the section 226A list came when it was added to what he said were the other flaws in that list.

[34] In the course of the argument, when he was allowed to respond to Mr McShane's submissions, Mr Hardman suggested that the union had made an unreasonable selection of people to ballot. He submitted that the union required to be reasonable in selecting those whom it would call out on strike. It would be reasonable that these should be only the people whose terms and conditions were directly affected and that all such people should be balloted.

[35] Further, Mr Hardman submitted that paragraph 73 of the ASLEF case supported his contentions. The respondent union was required to do more than it had done in this case to comply with its notification obligations.

[36] Mr Hardman went on to offer what appeared, on the face of it, to be compelling reasons to conclude that the balance of convenience would favour the granting of interim interdict: a midweek stoppage, which would involve losing additional time on closing down and re-starting, would cause considerable loss; work may have to be diverted to competitors which could cause the petitioner to lose customers; and more than half of the employees had agreed to the changes in terms and conditions which would in any event be introduced. There would be little difficulty if the respondent was required to re-ballot 'correctly'. In all the circumstances, interim interdict should be granted in terms of the petition, restricted by the exclusion of reference to Wednesday 15 June 2011.

Respondent
[37] Mr McShane opposed the granting of interim interdict. It was for the union to decide who was involved in the dispute and it had done so on the basis of representations from its members. It had decided who it would call on to strike and therefore who it would ballot. The legislation did not require it to achieve perfection in giving notice in terms of s 226A and 234A, it was only required that figures must be as accurate as was reasonably practicable in the light of the information in the possession of the union at the relevant times. The qualification of 'in the light of the information in the possession of the union at the time' was an important one as had been pointed out by Elias LJ in the ASLEF case, particularly at paragraphs 70 and 71. This meant that a trade union was not required to create records not otherwise available to it; rather it should assist the employer by drawing upon information which it already had.

[38] It was the union's view that all of those who had been balloted were concerned and affected as defined in the relevant provisions. It was the view of the union which mattered when it came to deciding who was in dispute with an employer and it was for the union to decide which of its members, who were employed by the petitioner, should be called on to strike and balloted. The union had complied with its obligations. It had not failed to ballot anyone who it was going to call on to strike and its decision as to who to call on to strike was based on the information in its possession at the time and its assessment of who was in dispute with the petitioner.

[39] The failure to identify the 9 members who did not feature in the 226A notice was excusable on the de minimis principle, an explanation had been given for it and the union had dealt with the matter openly and in good faith. Mr McShane again made reference to the ASLEF case in this regard. He referred to correspondence, 6/5 of process and to the section 334A notice, 6/3 of process.

[40] Whilst there was substantial dispute on some aspects of the true factual position, Mr McShane conceded that if the petitioner could show that it had a prima facie case, the balance of convenience would favour granting interim interdict, but he did not extend this concession to the figure of 9 persons missing from the 226A list.

The test for interim interdict in a case of this kind
[41] After I had continued the case to consider the submissions, it became apparent that counsel's concession did not sit easily with what had been said in paragraphs 10-12 of the ASLEF case. I drew this to the attention of parties when the case called again on 20^th June. Mr McShane did not feel able to seek to withdraw his concession, but Mr Hardman generously and candidly indicated that he had accepted that the court would approach the balance of convenience question in the manner described by Lord Justice Elias in those paragraphs and by Lord Fraser of Tullybelton in the House of Lords case of NWL Ltd v Woods (The Nawala), NWL Ltd v Nelson and Laughton [1979] 1 WLR 1294. Mr Hardman was not seeking to change his position, regardless of the position which had been adopted by Mr McShane.

[42] As Elias LJ explained in giving the opinion of the court in the ASLEF case, at paragraphs 10-12, whilst on the face of it in a strike case the balance of convenience almost always lies in favour of granting the injunction pending trial, in reality, determination of the interlocutory issue is in practice likely to determine the entire issue. Courts have recognised that in disputes of this sort they must have regard to the underlying merits of the claim, and in practice that involves considering whether the union would be likely to establish at trial that the immunities are applicable. He refers to NWL and to section 221 of the 1992 Act. Section 221(2), which is a statutory embodiment of that approach, does not apply to Scotland, just as its previous incarnation in section 17 of the Trade Unions and Labour Relations 1974 Act, as amended, did not.

[43] That state of affairs was considered by Lord Fraser of Tullybelton in NWL who concluded that it was not necessary for such a provision to be enacted for Scotland because of the approach which Scots law took to interim interdict which differed from that taken in England, (with reference to American Cyanamid Co v Ethicon Ltd 1875 AC 396), where it was thought to be wrong in an application for an interim injunction to weigh up the strength of the respective cases.

[44] He made the following observation at page 1310:

'In Scotland the practice is otherwise, and the court is in use to have regard to the relative strength of the cases put forward in averment and argument by each party at the interlocutory stage as one of the many factors that may go to make up the balance of convenience.'

He concluded, at pages 1310 and 1311 that:

'While the courts in Scotland would have regard to the likelihood of the respondent's succeeding in establishing the trade dispute defence, I would not expect them to accord any special priority to the defence beyond what it might seem to deserve in the circumstances of a particular case. That is exactly the effect that section 17 (2) is, in my opinion, intended to produce and does produce in England.

In the present case, having regard to the likelihood that the defendants would succeed in establishing a defence under section 13 of the Act of 1974, I would dismiss the appeals.'

Discussion
[45] Paragraphs 70-75 of the opinion of the court in the ASLEF case are in the following terms:

70 I agree with Mr Hendy's submissions for a number of reasons. First, in my judgment Mr Béar's argument simply fails to give any weight to the fact that the reasonably practicable duty is limited by reference to the information possessed by the union. Without that limitation I would agree that if it were reasonably practicable for the union to go out and acquire the information, it would have to do so. But these are important limiting words and Mr Béar's construction simply ignores them. In my judgment if the intention of Parliament had been to create a duty to create records not otherwise available to the union, it would have said so unambiguously. No such statutory obligation is created. Moreover, there would seem to be no point in formulating a detailed definition of information in the possession of the union if this were not intended in some way materially to restrict the nature of the duty cast on the union.

71 Furthermore, in my judgment the legislative history supports this approach. The changes made in the 2004 Act were intended at least in part to deal with the difficulties raised in the London Underground case. It would be surprising if they were intended to make the burdens on the union more onerous than they had been by creating a fresh duty to obtain information. I accept that there will be a duty on the union to obtain any relevant documents from union officers and employees and to collate and analyse that information to enable it to supply the relevant lists and figures to the employer as accurately as it reasonably can. Moreover, it would in my view be in breach of the duty to provide information drawn solely from documentary records when the union knew that the information was actually wrong. The duty is more than simply to replicate in a mechanical way the information in the union's possession. However, in my view what is required, as in the previous incarnations of this duty, is that the union should assist the employer by drawing upon information it already has. The fact that the information is defined as information held "for union purposes" supports this construction. It suggests that the information has been obtained in connection with some quite separate union purpose rather than simply for the specific purpose of complying with the statutory duty.

72 I recognise the force of the point referred to by Blake J in the EDF case and relied upon by Mr Béar that without some duty to acquire information, the union might deliberately sit on its hands and thereby frustrate the object of the statute. But I think that the concern is exaggerated, for the following reasons. First, in so far as this is a risk, it was present under the earlier statutory incarnations when the information was limited in terms to that in the possession of the union. Yet Parliament did not find that limitation objectionable. Second, in practice many unions will have information about their members' job categories and workplaces either in local or central records, for the simple reason that the information will be in its possession "for union purposes", to use the language of the section. Generally the union will want to know where its members are employed and by whom. Unions do not typically run their operations with the possibility of strikes in the forefront of their minds, but for the more mundane business of representing their members in pursuing grievances and conducting negotiations. For that purpose it is plainly of assistance to know how many members are employed and in what jobs by each employer with whom they have dealings. It is information which is likely to have a bearing on the union's negotiating strategy.

73 Third, the union will sometimes be indirectly obliged for other statutory reasons to have information available on workplaces and job categories. For example, if it wishes to conduct a strike ballot and the nature of the strike is one where the union has to undertake separate workplace ballots pursuant to section 228, it will need to have records of which members are at which workplace in order to ensure that it can form a view as to the appropriate constituency as defined in section 227 and not risk significant over or under balloting. Similarly, many strikes will be directed against a particular employer, or to advance the interests of a particular group of workers who alone will be called out, and the union will need to know which of its members falls into the appropriate category in order to ensure that the appropriate constituency, and no others, is being balloted.

74 In the light of these considerations it would not perhaps be surprising if Parliament should have assumed that in most cases the restriction of the notification obligation by reference to information in the union's possession would not seriously undermine the effectiveness of the duty, and that in practice unions would be unlikely to structure their record keeping simply in order [to] gain some small tactical advantage in conducting future possible strikes.

75 It follows that in my view the judge erred in law in holding that the union was under an obligation by virtue of the notification duty under section 226A to obtain further information or alternatively to set up systems to improve its record keeping. In my judgment the information given by the union in the ballot notification was as accurate as was reasonably practicable given the information in its possession at the material time.

[46] I found the reasoning of Elias LJ which led him to reach the conclusions which he did at paragraphs 70-75 to be persuasive and to vouch Mr McShane's proposition that, generally speaking, a trade union does not require to create records not otherwise available to it and that it should assist an employer by drawing upon information which it already has. That is the consequence of the limitation expressed by the term 'in the light of the information in the possession of the union at the time...'

[47] I did not find that what was said in paragraph 73 of that case imposed some extra obligation on the respondent union in the circumstances of the present case where there was only one workplace and only one employer. The union had identified who it wished to induce to take industrial action and therefore who it would require to ballot. Lord Justice Elias confirms that the appropriate constituency is defined in section 227.

[48] In making the submission to which I have referred at paragraph [34] above, it appeared to me that the petitioner had misunderstood the obligation imposed by section 227 which provides that:

'...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 to take part in the industrial action and no others.'

[49] Mr Hardman repeatedly suggested that the union must identify employees concerned, to use the language of section 226A, or affected using the language of section 234A, as those who would be directly affected by change in their shift rota. The implication suggested by Mr Hardman was that only these people could be induced to strike and therefore only these people could be balloted. However it seemed to me that this suggestion ignored the definition given for those terms in the respective subsections (2H) and (5C).

[50] In section 227, the word reasonable qualifies the belief as to who will be induced to take part in industrial action. The construction advanced by the petitioner would require the qualification introduced by the word reasonable to relate to the inducement to take part in the industrial action and it does not. There would also need to be some other criterion in the 1992 Act or elsewhere to inform the assessment of who might reasonably be induced to take part in industrial action supporting the petitioner's argument.

[51] In section 226A, subsection (2H), the word reasonably qualifies the union's belief, not the employees' entitlement to vote. In section 334A, subsection (5C), the word reasonably qualifies the union's belief, not the inducing.

[52] No case law was put before me which would support the contentions of the petitioner which may be difficult to reconcile with the terms of section 244 of the 1992 Act, which provides that a trade dispute is a dispute between workers and their employer which relates wholly or mainly to, inter alia, terms and conditions of employment or the physical conditions in which any workers are required to work. Section 219 (1) (a) protects an act done by a person in contemplation or furtherance of a trade dispute in certain circumstances and, contrary to Mr Hardman's submissions, this did therefore appear to be a relevant consideration.

[53] I was referred to certain passages in Harvey on Industrial Relations and Employment Law by both sides, but those passages did not seem to me to support the petitioner's position. In a passage founded on by the respondent, at NII 2090, it is stated with reference to section 244 and the case of British Telecommunications PLC v Communications Workers Union [2003] EWHC 937 (QB) that:

'A union may, for example, call out one group of workers in connection with a dispute about the terms and conditions of another group of workers, or a union may call out a group of workers where the dispute relates to the terms and conditions of only some of them: in either case the union acts in contemplation or furtherance of a trade dispute.'

In paragraphs NII 2006-2010, to which I was not referred and which deal with sympathetic action, it is suggested that one worker can take industrial action to support another, subject to the limitations against secondary action in section 224 of the 1992 Act, which are not applicable in the present case.

[54] At paragraph NII 2711, in dealing with balloting for industrial action, it is stated:

'The electorate is carefully circumscribed. In principle, the vote must be held amongst those 'at the sharp end' of the industrial action, so to speak, and amongst no others. That is to say the union must identify those of its members who it reasonably believes will be called upon by the union to participate in, or to continue to participate in, the strike or other industrial action. It must ballot those members and no others.'

This is a reference to section 227 of the 1992 Act and the accuracy of the description of the constituency to be balloted is confirmed, indirectly, by the case of British Airways Plc v Unite the Union [2009] EWHC 3541 (QB) which is referred to at section NII 2714.

[55] At a late stage of the proceedings, Mr Hardman suggested that support for his argument that the respondent union had not done enough to fulfil its obligations was to be found in paragraph 18 of the opinion of Mr Justice Blake in EDF Energy Powerlink Ltd v National Union of Rail, Maritime and Transport Workers [2010] IRLR 114. That is a case in which, unlike the present case, there was a dispute about the lists and categories referred to in subsection 2A of section 226A. It can be seen at paragraphs 68 and 72 of the ASLEF case that the court declined to adopt the approach taken by Mr Justice Blake in paragraph 18 in EDF. I also noted that on the constituency issue, his discussion in paragraph 18.4 rather confirms that it is for the union to decide who to call out to further its objectives in a trade dispute.

Decision

[56] Employees concerned for the purposes of section 226A are defined as those employees of the employer who the union reasonably believes will be entitled to vote in the ballot. Section 227 explains that entitlement to vote 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 to take part in the industrial action and no others. Employees affected for the purposes of section 234A are defined as those employees who the union reasonably believes will be induced, or have been induced, by the union, to take part in the industrial action.

[57] The petitioner's case was substantially periled on a concept of the correct constituency for which Mr Hardman could provide no warrant in the provisions of the 1992 Act itself, any commentary thereon, or any case interpreting the Act.

[58] Accordingly, beyond the omission of 9 members from the section 226A list, the petitioner had difficulty in satisfying me that it had a prima facie case. Mr Hardman for the petitioner did not seriously contend that interim interdict should be granted if that was all that he could demonstrate prima facie. In any event, I considered it very likely that it would be excused as de minimis.

[59] In the whole circumstances, and on the information which was produced during the course of the hearing, and having particular regard to the qualification of reasonable practicability in the light of information in possession of the union at the relevant times, I also considered that there is a high likelihood that if it were sued in delict, or if there were to be a full hearing on interdict, the respondent union would be successful in a defence based on the statutory immunities.

[60] In these circumstances, I refused the petitioner's motion for interim interdict.