Queen’s Bench Division
An injunction against industrial action was justified on the basis of non-compliance with s.228 (single aggregated ballot) and s.227(incorrect balloting constituency) of the Trade Union and Labour Relations (Consolidation) Act 1992.The judge had granted the plaintiff mining companies, an injunction late on 31 December 1996 to restrain the defendants, the National Union of Mineworkers (NUM) from proceeding with a series of 24 hour strikes due to begin on Monday 6 January. He now gave reasons for making the order. There had been an ongoing dispute between RJB and NUM which sought recognition and negotiation about pay. When RJB rejected the NUM's request to meet for negotiation a ballot took place on industrial action. The issue before the judge was whether there had been compliance with the statutory requirements as to balloting.
HELD: (1) At common law the proposed industrial action would involve breaches of individual contracts of employment and would be tortious on the part of the NUM. The NUM would have a statutory immunity from liability under s.219 of the Trade Union and Labour Relations (Consolidation) Act 1992 provided that it was acting 'in contemplation or furtherance of a trade dispute' (this was not questioned) and the statutory requirements as to balloting under ss.226-234 of the 1992 Act were complied with. (2) The NUM chose to seek to hold a single aggregated ballot under the exception permitted by s.228(3) of the 1992 Act rather than separate workplace ballots as contemplated by s.228(1). They could not then seek to disregard from the aggregated ballot an element which, on its own case, it intended to include. The omission of the members of one of its constituent organisations, the Colliery Union and Staff Association ('COSA'), could not be disregarded and presented an irregularity which would entitle the plaintiff to relief, in the absence of a discretionary reason to refuse an injunction. It was well-established that what the court has to decide is whether there has been compliance with the Act (subject to the de minimis rule), regardless of whether or not any established non-compliance would have affected the conduct of the ballot. (3) If some COSA members were telling their members not to vote because the ballot and proposed industrial action did not involve them, it was arguable that this could constitute 'interference' or 'constraint' under s.230(1)(a) of the 1992 Act, but was not sufficient on its own to ground an injunction. (4) The plaintiffs alleged widespread irregularity and incorrectness in respect of the balloting constituency which would evidence non-compliance with s.227 of the 1992 Act. It was well understood that a union was not expected to achieve 100% perfection in the conduct of ballots such as this. A union has the protection of the de minimis rule and the test of reasonable practicality (British Railways Board v National Union of Railwaymen (1989). The judge held that in this case it was highly arguable that the errors and omissions were of an extent which contravened the statutory requirements. The 1992 Act placed the duty on the union alone and union structure was irrelevant – if that structure made it impossible or difficult to comply with new legislation then they must consider how compliance could be better achieved. The injunction was justified on the basis of non-compliance with s.228 and s.227 of the 1992 Act. (5) As a matter of strict construction the notice given by the NUM to RJB did not comply with s.234A(3) of the 1992 Act. This was probably as a result of an unfortunate error and would not of itself be sufficient to justify an injunction. (6) The judge found that the matters advanced on behalf of the NUM in relation to discretion (timing of the application, defects in the plaintiff's evidence) were not such as to lead him to refuse the application for an injunction in the exercise of his discretion.
Nicholas Underhill QC and Patricia Robertson instructed by Nabarro Nathanson, London for the plaintiffs. John Hendy QC and Damian Brown instructed by Stephens Innocent for the defendants.
[1997] IRLR 621
