Opinion of Lord Johnston in Fullarton Computer Industries judicial review application, Court of Session 28 June 2001
ISTC v Fullarton Computer Industries CAC ref: TUR1/29 [2000]
BAJ v Essex Chronicles CA ref: TUR1/34 [2000]
For the CAC to make decisions on cases is one thing, but their decisions are susceptible to judicial review. The lessons from the past are that the High Court is not shy of overturning CAC judgments and that employers in particular are keen to use the High Court to prevent a trade union from gaining recognition. The CAC has now faced its first judicial review applications under the new statutory procedure.
In ISTC v Fullarton Computer Industries the employer took out judicial review proceedings to overturn a panel's decision to award recognition without a ballot where the union had 51% of members. Even though the density of trade union membership was only just a majority of the workforce, the panel decided that to view that fact as a reason to order a ballot would have the effect of raising the threshold of trade union members required, which is clearly set out in the legislation as a majority and not something higher. There was also an issue as to what date the assessment of trade union members should be made. This is particularly relevant where the workforce is constantly fluctuating as the legislation is silent as to the date when the membership levels should be judged for the purposes of deciding whether to order a secret ballot.
The judicial review failed. The Scottish Court of Session respected the panel's judgment and said it would be inappropriate for the court to substitute its view for the industrial jury of the CAC. An appeal against the judgment was withdrawn with Fullarton stating their intention to build a new relation with the union and accept the fact of recognition.
In BAJ v Essex Chronicles, the British Association of Journalists (a non-TUC affiliated trade union) sought statutory recognition with one of the Daily Mail group papers. The employer did not want to recognise the union. When the panel decided to accept the application on the basis of an agreed membership check that showed just under 50% of the workers in the bargaining unit were members of the union, they sought a judicial review of the decision. They challenged the conclusion of the panel that a density of 49% union members established likely majority support for recognition, and objected to the membership check results. The employer had consented to their list of workers in the proposed bargaining unit being compared with the union's list of members without either party seeing the other's list. The High Court rejected the application for judicial review on the papers. The employer sought a hearing to renew its application for leave to judicially review the CAC panel decision.
In the meantime, the CAC process continued and the union lost the ballot. As the union had not gained recognition via a secret ballot under the statutory procedure, the employer abandoned its judicial review.
The Central Arbitration Committee received its 100th application for statutory recognition from a trade union on 3 August 2001, just 15 months after the new law came into force.
This is not the flood of applications that some anticipated, but it is a respectable workload, and one that is well manageable within the CAC's resources. It would seem that statutory recognition has now become an accepted feature of the industrial landscape.