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15
June 2010
BA v Unite 17 May 2010
BA granted an injunction to stop a ballot of some 11,600
union members who had voted substantially in favour of taking
strike action beginning on the 18 May.
11 spoilt ballot papers were not referred to in texts or
in press releases and the court said the union could have
included reference to the 11 ballot papers in emails. Union
says: "We posted it on the web, we put notices on our
noticeboard and we distributed leaflets."
There was no evidence of anyone being unaware of the industrial
action, or even the number of spoilt ballot papers.
How can this be?
There is a requirement to notify members and the employer
as soon as reasonably practicable of (among other things)
the number voting "yes" and those voting "no"
- and the number of spoilt ballot papers. A provision in the
legislation relating to "small accidental failures"
does not apply to this obligation.
In the UK an injunction is granted on the balance of convenience
if there is a serious issue to be tried. This is less than
establishing an arguable case.
The FT reported: "The ruling came too late for more
than 20,000 British Airways passengers who faced disruption
to their travel plans on Tuesday and had to endure long delays
because the airline had changed its schedule in preparation
for the expected strike." Why didn't BA apply earlier?
Because their lawyers hadn't thought of the argument before.
The appeal decision on Thursday 20 May involved 3 senior
judges and was 2 - 1 in favour of removing the injunction.
It does not even represent an attempt to state where the bar
is - a very high bar anyway, but some guidance on one of many
provisions in the 1992 Act.
The Court of Appeal in 1996 "Parliament's object in
introducing the democratic requirement of a secret ballot
is not to make life more difficult for trade unions by putting
further obstacles in their way before they can call for industrial
action with impunity...the requirement has not been imposed
for the protection of the employer or the public, but for
the protection of the union's own members." (Millet LJ
in LUL v NUR). How naive was that?
Johnston Press v NUJ 17
May 2010
On the same day in May 2010 Johnston Press stopped the NUJ:
The NUJ had to accept they had been caught out in a ballot
of 550 journalist members when the company presented a 600
page document at the 11th hour claiming they did not employ
any journalists, but that the journalists were employed within
a web of associated companies under the "Johnston Press"
umbrella.
Network Rail v RMT 1
April 2010
Network Rail successfully applied for a high court injunction
against the RMT union to stop the first national rail stoppage
in 16 years, citing strike ballot inconsistencies. (See UC
letter to Guardian).
Milford Haven Port Authority v Unite February
2010
The High Court initially granted MHPA's application for an
injunction, agreeing with the employer that the notices were
in the wrong form and that the pilots and launch crews should
be prevented from taking strike action.
BA v Unite December
2009
British Airways wins a high court injunction to stop Unite's
planned "12 strike days of Christmas" because the
union was said to have mistakenly balloted 811 members who
had already applied for voluntary redundancy some of whom
the union could not reasonably expect to take part in the
industrial action. (NB about 12,000 employees took part in
the ballot: 92.5% majority on an 80% turnout. Had the 811
people not been included and it was assumed that those who
did vote, voted in favour the result would have been 91.5%
in favour).
EDF Energy Powerlink v RMT October
2009
EDF Energy Powerlink, who operate and maintain the electrical
power network on London Underground, successfully petitioned
the High Court, alleging problems with the ballot, to grant
an injunction stopping electricians from striking over a pay
dispute. The RMT had balloted 64 electricians employed by
EDF at six workplaces, whom it categorised as "engineer/technicians".
But EDF argued its workforce of 155 staff covered six different
trades and that, as such, it could not tell which trades were
covered by the union's notice to ballot.
The good news is that the RMT have lodged papers at the European
Court of Human Rights in relation to that case arguing that
the UK laws are themselves unlawful under the European Convention
on Human Rights & Fundamental Freedoms and that a bar
on solidarity action is too.
Metrobus v Unite August
2009
Metrobus gained an injunction against Unite to stop walkouts
over pay and conditions after the High Court (and agreed by
the Court of Appeal) found there were fatal flaws in the balloting
process, where staff had voted 90 per cent in favour of two
24 hour strikes...the particular problem related to the ballot
result not being given to members and the employers as soon
as was reasonably practicable (explain - similar to the latest
BA injunction). The union followed previous practice. And
it was argued that the union had to give an explanation as
to where the figures came from - but "The figures come
from our computer at head office" would have complied
with the requirement.
Argument at the Court of Appeal included a comprehensive
explanation if the UK laws being in breach of fundamental
human rights. The employer's QC argued that the laws were
a fair balance between different interests because the Labour
government's reviews and changes to the law left the Tories
anti-union laws largely intact.
Industrial action on Metrobus, due to take place the following
day 10 October was stopped but went ahead on routes covered
by FirstGroup and Metroline...who can claim damages...
BA v BALPA May 2008
The British Airline Pilots Association abandoned a high
court battle against BA over its threat to seek an injunction
against a planned strike. Balpa went to court to seek clarification
that its right to strike over the OpenSkies programme did
not conflict with European law. BA claimed that European Community
law lets any business based in the EU open a business in another
state prohibited its pilots from striking over the move.
However the ILO Committee of Experts declared in March 2010
that the Government must review the UK's anti-union laws and
consider appropriate measures for the protection of workers
and their organisations. This call is in light of observations
made by the ILO for many years concerning the need to ensure
fuller protection of the right of workers in the UK to exercise
legitimate industrial action in practice.
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