Striking a deal

Metrobus v UNITE

Before calling workers out on industrial action, unions have to hold a ballot and tell the employer as soon as is reasonably practicable of the result before taking action (among other things). In Metrobus v UNITE the Court of Appeal said that the union must inform the employer of the result as soon as reasonably practicable after holding the ballot, whether or not it subsequently calls for industrial action.

Basic facts

On 8 August 2008, UNITE gave Metrobus written notice of its intention to hold a ballot for industrial action after negotiations to improve the pay and conditions of bus drivers broke down.

The ballot closed on 1 September and the union should have received the result on that day. However, the result was not received until 2 September and it was not until 3 September that the result, the scrutineer’s report showing 90 per cent in favour of the action and a notice that action would take place on 12 September were sent to Metrobus. Further notice was given on 2 October of more action on 10 October.

The company applied to the High Court on 9 October for an injunction restraining the union from taking more industrial action. It complained that:

• the union had not given notice of the result as soon as was reasonably practicable after holding the ballot
• the notice of ballot failed to provide an explanation as to how the lists and figures in respect of the non-check-off members had been arrived at
• the numbers specified in the notices of action were not as accurate as was reasonably practicable in the light of the information in the union’s possession because of a discrepancy of 10 check-off members between the notice of ballot and the two notices of action.

The judge agreed that there were fatal defects in the notice of the ballot and the two strike notices, and that UNITE had not notified Metrobus promptly enough of the result of the ballot.

The union appealed, arguing (among other things) that the judgement cut across the rights conferred by article 11 of the European Convention on Human Rights (ECHR) and meant that it would be virtually impossible for unions to call a strike.

Relevant legislation

Section 226A of the Trade Union and Labour Relations Consolidation Act 1992 (TULRCA) states that unions must provide employers with certain information by specified dates in advance of the ballot. This includes lists of the categories of employees to be balloted and their workplaces, as well as the number of employees in each category and where they work, along with an explanation as to how they arrived at those figures.

Section 231A(1) states that unions must also “take such steps as are reasonably necessary” as soon as reasonably practicable after holding the ballot to ensure that the employer is told the outcome of the ballot.

Section 234A requires unions to provide employers with information about the industrial action it intends to take and the number, categories and workplaces of employees likely to be affected.

Article 11 of the ECHR states that the right to freedom of association including the right to form and to join a trade union must not be restricted except in certain specified circumstances.

Court of Appeal decision

The Court of Appeal said that:

• Section 231A imposes a “free-standing” obligation on the union to inform the employer of the result as soon as is reasonably practicable after holding the ballot, whether or not the union subsequently calls for industrial action
• the union should have made enquiries of the scrutineer on the afternoon of 1 September to ascertain when the ballot result would be available
• in any event, the union should have given notice of the result to Metrobus “there and then” when it received the result from the scrutineer on the afternoon of 2 September
• compliance with the union’s internal authorisation procedures does not justify any delay in providing notice of the result of the ballot to the employer
• the union had not given notice of the result of the ballot to Metrobus as soon as was reasonably practicable after the holding of the ballot
• the union had not provided the required explanation as to how the lists and figures for non check-off employees had been arrived at
• the union does not have to specify the total number of employees on check-off
• the requirement to provide the result of the ballot as soon as reasonably practicable and to provide an explanation as to how the lists and figures were arrived at were not disproportionate restrictions in terms of article 11 ECHR. 

The appeal was dismissed.