Failed Injunction Attempt
Labour & European Law Review Weekly Issue 263 05 April 2012
The Trade Union and Labour Relations Consolidation Act (TULRCA) requires unions to follow a complicated set of rules before taking industrial action. In London Underground Ltd v ASLEF the High Court said that unions could lawfully ballot members who were being asked to join the picket line as well as those taking strike action on a particular day.
ASLEF instructed Thompsons to act on its members’ behalf.
Following a dispute with London Underground Ltd (LUL) over payments to drivers for working on Boxing Day, the union took strike action on Boxing Day 2010. The dispute was not resolved and it issued a notice to LUL on 16 November 2011 under section 226A TULRCA that it intended to ballot almost 2,000 union members.
On 12 December 2011, LUL wrote to the independent scrutineer complaining that the union had allowed members who would not be working on Boxing Day to vote. On 14 December 2011 the union notified LUL that of the 998 people who had voted, 920 had voted for strike action.
The company applied for an interim injunction on the following grounds:
• that the union was in breach of section 227 TULRCA by balloting members who could not be called on to take industrial action on Boxing Day because they were not rostered to work that day
• that the independent scrutineer had failed in their statutory duty under section 231(B) to investigate errors by ASLEF which had given all its driver members the chance to vote; and that the union had contravened sections of the code of practice by failing to ensure that the independent scrutineer carried out their functions properly.
Section 227(1) states that members who “... will be induced ... to take part or, as the case may be, to continue to take part in the industrial action in question ...” are entitled to vote.
Section 231B(1)(a) requires the independent scrutineer to report whether they had any grounds for believing that “a requirement imposed by or under any enactment in relation to the ballot” had been contravened.
High Court decision
The judge found against the company on both grounds.
He accepted ASLEF’s evidence that the action was not limited to Boxing Day (the ballot papers had not claimed that it was and LUL had been notified of further days of action), and concluded that this was fatal to the company’s application on this ground.
The judge also accepted that balloting non-rostered members and members whom the union was calling on to join picket lines was lawful, as the law did not require the union to limit the ballot to members who would actually be on strike on a particular day.
He emphasised the importance of the wording in section 227 which referred to people whom the union believes will be induced "to take part” in the industrial action as opposed to actually “take” action.
Including the words "take part ... in", said the judge, was a “strong indication that the ballot is not to be restricted to those who will actually take the industrial action in question i.e. withdraw their labour in breach of contract but extends to those who will take part in it”.
The judge also rejected the company’s argument that the independent scrutineer had failed to carry out their functions properly. As this argument was dependent on the company’s first ground of challenge, it failed for the same reason. Secondly, the code of practice was only relevant if it could be regarded as an “enactment” for the purposes of section 231(B), which it plainly was not.
This is another welcome decision following the approach taken by the Court of Appeal in RMT v SERCO, ASLEF v London Midland (see weekly LELR 213) last year. The decision of the court that the challenge to the independent scrutineer’s report was “hopeless” is most helpful and should answer the number of challenges that unions have faced on similar grounds in recent years.