18 March 2011

Keith Ewing

The recent decision of the Court of Appeal on the right to strike in cases involving Aslef and RMT is a major triumph for the British trade union movement in its battle to restore trade union rights.

Well might Bob Crow’s members be “over the moon,” as reported in the pages of this newspaper.

As such the decision represents not only a significant achievement for the union’s legal team led by John Hendy QC but also a vindication of the strategy of some unions to use the European Convention on Human Rights to challenge the anti-union laws bequeathed by the Tories and retained by new Labour.

It is a historic decision in which the Court of Appeal at long last recognises not only the defects of English common law which “confers no right to strike in this country” but also the importance of “various international instruments” in which these rights are openly acknowledged.

Not only that, but the court has at long last further acknowledged that the European Court of Human Rights in Strasbourg “has in a number of cases confirmed that the right to strike is conferred as an element of the right to freedom of association conferred by Article 11(1) of the European Convention on Human Rights.”

According to the appeal court, this “recognition of a right to strike” – let’s say that again – according to the appeal court, this “recognition of a right to strike” had a significant bearing on its decision not to sweep away the anti-union laws yet but to make sure that these laws are not to be strictly applied against trade unions.

No longer are the courts to start from the assumption that the legislation should be strictly applied against trade unions, with a presumption that Parliament intended that the interests of employers should always hold sway.

The courts are now instructed that they are not to invent new additional restrictions beyond those in the legislation.

The appeal court’s decision was concerned with injunctions issued by the High Court in two separate disputes, one involving Aslef and the other RMT.

The employers in question were London Midland and Docklands Light Railway respectively.

Both injunctions were overturned in the appeal.

The injunctions against Aslef were granted principally for three reasons – the first being that the union had inadvertently included in the ballot two members who were not entitled to vote.

This was a genuine mistake openly acknowledged by the union, but it did not affect the result of the ballot.

As reported by the Court of Appeal, ballot papers had been sent to 605 drivers, of whom 472 voted (a turnout of 78 per cent), with 410 (87 per cent) voting in favour of industrial action.

The accidental inclusion of the two members not entitled to vote was said by the appeal court to be trivial and therefore excusable.

The second ground for the Aslef injunction was that the union had provided inaccurate information in the notice which the law requires unions to give employers of their intention to hold a strike ballot.

In this case – unbelievable though it may seem – the notice was said to be inaccurate for including the two disputed members.

This type of pedantry is a problem that has been encountered by unions in series of recent cases, with the High Court imposing impossible demands on trade unions in relation to the notice they must provide to employers, based on the accuracy of the records the courts have said unions should maintain.

At the prompting of Hendy for both unions, however, the Court of Appeal took a robustly realistic view of the situation, reminding employers everywhere that the duty on the unions under the legislation is simply to provide a notice which is accurate in relation to the information actually held by the union.

In other words, the union is not under a duty to go looking for information to satisfy the convenience or whim of the employer.

The Court of Appeal’s decision in this respect called into question the validity of the injunctions granted against RMT in earlier cases involving Network Rail and EDF Energy.

The third ground for the injunction was that the union had failed properly to explain to the employer how it had arrived at the information contained in the ballot notice.

The union had said that the information was based on the union membership records, which had been updated and audited to ensure accuracy.

Not good enough, said Charles Bear QC for London Midland. In his view, the union should have disclosed precisely who did what and when, as well as when the records were last updated.

Not only that.

According to Bear, the notice was fatally flawed for being a “conclusion” rather than an “explanation.”

This is the kind of nonsense that RMT in particular has had to put up with in recent cases.

But the Court of Appeal was having none of it, taking the view that “nothing is to be achieved by stating which particular officer obtained the information, or on which particular day, or whether contacts with local officers were by email or phone.”

Nor was the court having any of the employer’s argument that the union had given an inaccurate explanation by claiming that it had audited its records before giving the information to the employer.

Apart from anything else, there was no duty to conduct an audit and no duty to say one way or another whether that had been done.

Finally on the decision, the accuracy and adequacy of the notice to the employers was also the ground for the injunction obtained against RMT.

But having discharged the injunction against Aslef, the appeal court also discharged the injunction against RMT, and did so for similar reasons.

So a comprehensive victory for Aslef and RMT in which the Court of Appeal stressed the freedom to take industrial action was not to be constrained by ridiculous arguments invented by lawyers.

Nor was it the role of the court to “set traps and hurdles for the union which have no legitimate purpose or function.”

True, many of the other traps and hurdles of the anti-union legislation remain.

Nevertheless, the confidence of employer legal teams will have taken a real battering from this decision, with big companies no longer in a position to let lawyers take control of their employment relations.

No more the arrogant swagger.

The pendulum is swinging in other ways too.

These cases established the duty of the courts to take into account the unions’ right to strike in international law, when applying or interpreting the statutory ballot notice provisions, and the nature and scope of the obligations they impose.

The next step will be to have the ballot notice provisions removed altogether.

The obligation to require a ballot notice at all is in breach of the right to strike guarantees in the European Social Charter, and the attempt to have them removed completely is the subject of an important RMT challenge in the European Court of Human Rights.

In the meantime the Con-Dems have been presented with a real headache.

True, the government will want to retaliate with a fresh wave of anti-strike legislation.

But any such retaliation will almost certainly be overruled by the European Court of Human Rights, the court from which the Tories want to – but cannot – withdraw.

So let us rejoice in a great decision, which represents a seismic shift in English law, and rejoice in the confident knowledge that trade union action will not be quite so easily restrained in the future.

But let us do so fully aware that while employers are licking their wounds, they are also preparing for their next assault on workers’ rights.

This aticle first appeared in the Morning Star