The claimant had formed an organisation called ERRAS Ltd which represented, for a fee, employees in the health sector who were in dispute with their employer. However, ERRAS was unable to effectively and adequately negotiate on behalf of workers and in some cases was unable to attend any internal disciplinary hearings because it was not a union. The claimant formed GAHWU and applied to the Certification Officer to have it listed as a Trade Union. The application was rejected on the basis that GAHWU did not satisfy s1 of TULR(C)A 1992; the principal aim of the organisation was to facilitate access to hearings before employers at which individuals could be represented but there was no evidence to support any collective activity which would constitute regulating relations between workers and employers. The claimant appealed.

The EAT dismissed the appeal. The Certification Officer was entitled on a proper construction of the applicable legislation to come to the conclusion, which was a matter of fact, and was properly approached.

________________

Appeal No. UKEAT/0180/13/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 5 July 2013

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

(SITTING ALONE)

MR A AKINOSUN (ON BEHALF OF GENERAL & HEALTH WORKERS

UNION) (APPELLANT)

THE CERTIFICATION OFFICER (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR A AKINOSUN (The Appellant in Person)

For the Respondent
MR T LINDEN (One of Her Majesty's Counsel)
Instructed by:
Treasury Solicitors
One Kemble Street
London
WC2B 4TS

CERTIFICATION OFFICER

The Certification Officer decided after consultation that GAWHU was not a trade union, because the principal aim of the organisation was to facilitate access to hearings before employers at which individuals could be represented: the promoters of GAWHU had been involved in successive companies seeking to represent workers for a fee, and there was no evidence to support any collective activity which would constitute regulating relations between workers and employers.

He was entitled on a proper construction of the applicable legislation to come to the conclusion, which was a matter of fact, and was properly approached.

1. On 22 January 2013 the Certification Officer for Trade Unions and Employers Associations decided that the General and Healthcare Workers Union was not, as it had claimed to be, a trade union as defined as section 1 of the Trade Union & Labour Relations Consolidation Act 1992. He was therefore unable to certify it as such. A right of appeal flows from that decision to this Tribunal by virtue of sections 9(1) and 4 of the 1992 Act. That appeal lies on a question of law. Accordingly, my function is not to decide whether the GAHWU is or is not a trade union for myself. It is not for me to decide whether it would be desirable that it should be. It is for me to decide whether the Certification Officer went wrong in law when he decided it was not.

1. The decision is made under section 1 of the Trade Union & Labour Relations Consolidation Act 1992. That is headed, "Meaning of Trade Union". So far as relevant to this appeal, it provides:

"In this Act a trade union means an organisation, whether temporary or permanent (a) which consists wholly or mainly of workers of one or more descriptions and whose principal purposes include the regulation of relations between workers of that description or those descriptions and employers or employers associations …"

1. By section 2 of the 1992 Act the CO is required to keep a list of trade unions. By section 3 an organisation of workers whose name is not entered in the list may apply to have its name entered in the list. By subsection 3 the following is provided:

"If the certification officer is satisfied, (a) that the organisation is a trade union, (b) that subsection (2) has been complied and; (c) that entry of the name in the list is not prohibited by subsection (4) he should enter the name of the organisation in the list of trade unions."

1. Some observations which are not, as I understand it, controversial in the context of this case. First, looking at section 1: the question whether the organisation fits the description in section 1(a) is a question of fact. The principal purposes referred to are not the purposes as declared or set out in a rule book or statement of aims and objectives or similar document unless they are factually the principal purposes of that organisation. There is no warrant for viewing the principal purposes as determined by such a declaration. The issue is one of reality and fact. Thus in any case in which as a matter of fact the CO decides the purposes do not include the regulation of relations between workers and employers he cannot certify the organisation as a trade union; that is notwithstanding any declaration which may have been made. He will, of course, require to have evidence upon which he reaches his conclusion, but as Mr Linden QC points out given the wording of section 3(iii) the burden proof is upon the organisation which desires to be certified.

1. The second point which arises is that the definition looks at the collective work done by the association rather than the work of a body or particular individuals within it. The regulation of relations is between groups, workers on the one hand and employers or employers associations on the other. Therefore, an organisation which did not include such a purpose but which did exist to provide representation at hearings internal to the employer would not, purely by reason of that alone, be a trade union. There would be nothing of the collective about it. Thus it is to be expected that any organisation seeking certification will, the burden being on it, have to produce sufficient evidence to show that a purpose which is a principal purpose of the organisation is collective in nature, whatever other individual purposes it may be established to service.

1. The third point of construction which I accept from the submissions of Mr Linden QC, is that section 3(iii) is framed in the present tense. The "organisation is a trade union", are words which look not to what will be at some future date. They do not anticipate what it is contended, whether reasonably or not, will be the situation next week or next month, they to see whether as it now stands the organisation under consideration meets the definition in section 1. This point of construction seems to me clear from the tense but it is in any event supported by the structure and purpose of the Act. Certification is a serious act. The reason why the sections are as detailed as they are and provide for mandatory certification if a body is a trade union and do not give any power to certify a body which on the facts is not, is that important consequences follow from the fact of certification. There is an academic debate as to whether a body which is an organisation whose purposes include regulating relations between workers and employers is a trade union irrespective of whether it is certified. The better view may well be that it is, but that is a pointless debate in the context of certification: and the benefits which are conferred by certification are not conferred on any trade union, but only one whose name has been entered into the list.

1. In the course of his submissions Mr Akinosun said that the certification officer should have taken into account the fact that at some stage in the future, if by its activities GAHWU showed that it was not behaving as an organisation within section 1, he had the right within section 4 to remove its name from the list. The argument was that that should affect the decision as to whether it should be entered into the list in the first place; I reject that argument. It seems to me that the power to remove a body which does not comply with a description is no reason for asking carefully whether it is or is not such an organisation in the first place. If it is not, on the facts, within the description in section 1, it cannot be certified properly. The fact that if it were by mistake so certified it could be removed does not mean to say that it should be so certified in the first place.

1. The Certification Officer reported in 2011/2012 as to the number of occasions on which he had been asked to certify a body which existed not to fulfil the purposes set out in section 1(a) of the 1992 Act but to provide a representation for individuals for which, if certified, it would have a right pursuant to section 10 of the Employment Relations Act 1999. As I have pointed out, and as I do not think seriously in dispute before me, such a body if it did not also have the section 1(a) purpose, which I use as shorthand for the principal purpose there set out, would not be a trade union.

1. The Certification Officer set out first a background of consultation. It is plain that the reasons which he gave in the following 19 paragraphs did not deal with every single fact which had been presented to him but he made it clear in the second paragraph of the letter, before coming to his reasons, that he had considered the materials provided to him on behalf of GAHWU together with information provided at a meeting with Mr Adelaja and Mr Ajisafe on 8 January; respectively described as the Communications and Publicity Secretary and the Treasurer and Financial Secretary of the putative union.

1. Mr Akinosun was described as the union's General Secretary. He has appeared to advance the union's case on this appeal which, if I may so, has done with no little skill and frankness.

1. The CO went on to set out the definition and to say from paragraphs 3 to 18 why it was he did not think that GAHWU was a trade union. The nub of it was a decision in fact which he reached at paragraph 17. I shall go straight to that before commenting on other parts of the decision. In that paragraph he said:

"17. On the facts of this application I find that you [the letter was addressed to Mr Akinosun on behalf of GAHWU]

are the prime mover behind both ERRAS Ltd and GAHWU, both of which are to provide representation for workers."

1. I should explain that ERRAS Ltd was an acronym for Employment Rights Representation and Advisory Services Ltd. There had been three companies with that name, the first iteration beginning in July 2001. The last in September 2010 and continuing had as its directors Mr Akinosun and Mr Ajisafe. Its registered office was 1 Anglesey Road in Woolwich. The Certification Officer continued at paragraph 17:

"ERRAS Ltd now does so for a fee but has no right to accompany workers under section 10 of the 1999 Act. GAHWU, were it to be a union, would have the benefit of section 10 to accompany workers at certain meetings with employers through its employed officials and any other official who had been properly certified by the union. I have had regard to the fact that the directors of ERRAS Ltd would be the main actors in GAHWU, to the genesis of GAHWU and to its proposed shared premises."

I interpose: those premises were to be or are at Anglesey Road, shared with ERRAS, without the union currently having any separate office equipment and sharing that with ERRAS. Returning to the paragraph:

"I also note that if you or Mr Ajisafe were to be asked to represent a worker in a disciplinary hearing it is not clear whether that worker will be channelled to ERRAS Ltd or the proposed union and there may be confusion in at least some cases given the close connection between the two. In this regard, it would be naïve to imagine that commercial considerations would be irrelevant, let alone the fiduciary duties of directors. On the basis of all the facts before me, I find that the principal purposes for the proposed creation of GAHWU are to take advantage of section 10 accreditation, to directly or indirectly further the commercial interests of ERRAS Ltd or its directors and do not include the regulation of relations between workers and employers as required by the definition of a trade union.

18. For these reasons I find that GAHWU does not satisfy the definition of a trade union …"

1. That conclusion came, as I have recorded, at the end of a number of paragraphs. At the outset in paragraph 4 the CO had noted that as at 8 January 2013 GAHWU had no members. It was confirmed, see paragraph 3, that the union was not then formed. It could therefore have no members. Nonetheless, the CO accepted, "That this would be a technical ground for rejecting your application". He had in mind that there might quickly be a further application. He considered the application on the basis that GAHWU did exist as an organisation and did have members.

1. He found that Mr Akinosun was the driving force behind its formation, that he and Mr Ajisafe had become directors of ERRAS and that by late 2011 the volume of work being done by ERRAS was such that Mr Akinosun decided to leave his full-time job as a nurse and devote himself mainly to ERRAS Ltd.

1. It was against that background, he thought, that GAHWU applied to be listed as a union. He was given assurances, see paragraphs 14 and 15, as to the way in which GAHWU would develop. That therefore was an assurance as to the future. Although he had taken the point benevolently given the law as I have set it out that GAHWU might be treated as being an organisation for the purposes of the 1992 Act, the question which he had to address was whether that organisation ran in a way which satisfied section 1.

1. Where promises are made as to the way in which an organisation will work, it is obviously not the same as evidence of the way in which it does work. Therefore, it was, in my view, open to the CO not to accept the assurances as to the way in which matters would operate in the future.

1. He set out in paragraph 16 the difficulty caused by section 10 of the 1999 Act so far as he was concerned:

"In my judgment, the establishment of the putative trade union in circumstances in which the rights afforded by section 10 may be abused requires careful examination and if upon examination I am satisfied that the union has been created for the commercial benefit of another person or entity I may be compelled to the conclusion, adopting a purposive interpretation of the definition of a trade union that its principal purposes do not include the regulation of relations as provided for in the definition in the 1992 Act."

1. Two passing observations about that passage. First the CO did not have to be satisfied that the union was created for some purpose other than that set out in section, though if he were satisfied that that was its purpose, it would exclude the purpose in section 1. He therefore took the point too high in favour of GAHWU. Secondly, Mr Linden argues that the test which should be adopted is not the test, consistent with that which I have expressed, that the case must be compelling to override an express object in the rules. He argues that careful examination is all that is required to establish the facts on the balance of probability. I do not in this case have to resolve the perhaps difficult question whether there needs to be compelling evidence, that objects set out in a constitution agreed by members of a body do not represent their principal purpose, and that despite their apparent agreement since that is not this case, since the test in any event is one beneficial to the putative union and the certification officer approached the exercise of his fact finding in that rather beneficial light.

1. The reason why it is not this case is because there was here no body whose practice could be established and, as I have pointed out, the burden of proof was on it.

1. The grounds of appeal argue that there was no compelling evidence to show that the purpose was not that set out in the draft rules. Secondly, that the intention was to have elected officers from amongst members after a year, for the Appellant, Mr Adelaja, Mr Ajisafe then to withdraw from being officers, that GAHWU should have its own officers with its own dedicated telephone and fax lines and hence there was no evidence to justify the CO's conclusion that it was not clear whether a worker would be channelled to ERRAS Ltd or GAHWU in the event of needing internal representation.

1. He argued that the desire to have a bespoke union amongst those who had approached him and others with a view to form GAHWU should not be denied on the basis of slim or thin material and inferences and suppositions which were not justified. As he put it, it was:

"Wrong in law to make assumptions for which there was no scintilla of evidence or to deny an otherwise qualified body the status of union listing simply based on what was cited as a purposive interpretation where the compelling evidence required was not available."

1. This, therefore, is an argument that the CO was wrong to come to the factual conclusion he did. Such an argument can be sustained only if the conclusion is perverse or if Wednesbury criteria properly apply; that is that in reaching that conclusion the CO took into account matters he should not have done or left out of account matters which he was required to take into account.

1. As to overall perversity, the question is whether he reached a decision which is wholly unreasonable: as it has been put in other contexts whether his decision would excite astonished gasps from the amazed observer. Mr Linden argues that there was ample material, as opposed to there being no material, upon which the CO based himself. First, ERRAS Ltd and GAHWU were almost inextricably intertwined; they shared two directors, they shared premises, GAHWU had no independent equipment. The emphasis in much of the discussion between Mr Akinosun and the CO's office emphasised that the genesis of GAHWU came because it was thought necessary to help individuals with representation, and as was said in a letter of 6 October 2012:

"Currently, we [that being a reference to GAHWU, although it did not then exist]

are unable to effectively and adequately negotiate on behalf of these workers that have suggested that ERRAS negotiate better working conditions for them and in some cases we are unable to attend any internal disciplinary hearings because we are not a union … having made preliminary telephone enquiries with two NHS trusts … we were made to understand that being a certified union is absolutely imperative before engaging with us in any form."

1. Mr Linden notices that in this letter the emphasis is on individual representation rather than the collective although there is undoubtedly reference in that paragraph to the latter.

1. The fact should not be lost that there were no members as CO was entitled to view it at the date of application to him, that, as Mr Linden puts it in paragraph 15 of his skeleton, the set up was of an opaque nature, there was tenuous evidence of there being an organisation separate from ERRAS and tenuous evidence of any collective perspective. He noted at paragraph 16 that the Appellants' view of individual and collective representation appeared to be related to representing people in cases of discipline where they had been accused or punished for alleged breach of work rules. He emphasises that this is only to show that the decision had evidence to support it. He did not centrally argue but it was implicit in his submissions that there was no evidence produced by GAHWU, as would be required by section 3(iii), to show that it actually did have a purpose which in reality was that of regulating relations between workers of that description. Neither party has referred me on this hearing to any evidence that that had ever actually taken place in the name of GAHWU.

1. It may well be, as Mr Akinosun has emphasised, that that is because that is what GAHWU intends to do and it needs to be made a trade union first in order to do it. That, however, brings me back to one of the central difficulties in the purported union's case: that much of the case relates to undertakings, assurances and assertions as to how matters might operate in the future. But the question of whether a trade union is a trade union cannot be answered by answering a different question - whether it will or it might be reasonable to think it will become a trade union.

1. It follows in my view that there were facts from which the CO could conclude that GAHWU was not within the definition in section 1. Having so concluded, he could not certify GAHWU as a trade union.

1. It follows that despite the best arguments of Mr Akinosun this appeal must and does fail.