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Issue 66 (January 2002)
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RMT v Midland Mainline [2001] IRLR 813 (Court of Appeal)
It is becoming more and more difficult for unions to conduct industrial action which complies with the strict and complex statutory balloting requirements. The changes introduced by the Employment Relations Act 1999 do not appear to have made life any easier. The courts have applied the legislation in a manner which is bound to encourage employers to head to the courts in the hope of securing an injunction.
Midland Mainline obtained an injunction preventing industrial action by RMT. The union's appeal to the Court of Appeal was unsuccessful.
RMT had balloted 91 members. The vote for strike action was 25 for, 17 against, with 49 not voting. There had been correspondence before the ballot when the employer disputed the numbers balloted. The union refused to supply a list of names. The employer refused to supply a list of employees to allow the union to check its records.
It turned out that 25 RMT members in the relevant grades had not been balloted. Eleven were members in respect of whom the union had not received or recorded information about them joining the relevant grades. Ten were members the union wrongly believed to be in arrears of contributions. Three were sent ballot papers to wrong addresses and one did not receive a ballot paper by mistake.
The Court of Appeal said that the union had not complied with the legislation as it had not balloted all members who it was reasonable at the time of the ballot for the union to believe would be induced to take part in the action. It upheld the injunction.
The court said that the relevant considerations were that the union was seeking immunity from the general law which outlaws strikes; that the broad aim of the legislation is to allow those who are to be induced to take action, to vote; the legislation identifies who should be entitled to vote and restrictions on the entitlement should be construed narrowly; there is special provision for minor accidental errors and the union has a statutory obligation to keep a register of members' names and addresses.
It is not surprising that a court that takes such a negative view of the legislation will readily find that a union has not complied with the statutory requirements.
The court said that the failure to ballot the three who had not supplied updated addresses was legally excusable as the union had a system for reminding members to provide details of changes of address.
However, the court concluded that the ballot was unlawful because the union did not ballot those who it did not know were in the grades concerned and those who it believed were in arrears with contributions. This is despite the fact that the union did not call upon those members to take part in the strike. The strike notice was sent only to those who had been balloted. The court said that those who had not been balloted, even those who would have voted against action may 'be induced to take action by their own feelings that this is appropriate', therefore it was not reasonable for the union to believe that those who had not been balloted would not take part and (it would seem from the judgment) would be regarded as having been induced to do so.
This would seem to require unions to include in ballots even those who it does not intend to call upon to take action, but who may choose to do so regardless. This will be difficult, if not impossible, for unions to assess and appears to be contrary to the purpose of the legislation.
The current situation is untenable. The legal requirements have become a moving target which it is increasingly difficult for unions to hit. The law should be clarified and simplified so that industrial action which has the support of the majority of the members concerned cannot be defeated by the labyrinthine complexities of over-complex legislation. This should be addressed by the government in its forthcoming review of the Employment Relations Act 1999.