Employment Cases Update

Milford Haven Port Authority v Unite the Union [2010] EWHC 501 (QB)

Date published: 17/03/2010

Application by employer for injunction to prevent industrial action by Unite on the grounds that the strike notices were flawed as they stated that the action would be both continuous and discontinuous. Application granted.

The dispute arose from the employers plans to change the pension provision for several classes of employee. Unite then balloted the different classes and the pilots opted for strike action or action short of a strike. The union then sent a strike notice to the employer informing  them of the proposed action which would be "continuous and discontinuous" including overtime bans, work to rule and a 48 hour stoppage from handling ships above a certain tonnage. The employers then issued this application for an injunction.

In this hearing counsel for the employer submitted that, among other things, s234A(3) of the the Trade Union and Labour Relations (Consolidation) Act 1992 make it "crystal clear" that a strike notice cannot specify both continuous and discontinuous action with the result that the notices are "such that it is simply not possible for the claimants to deduce with sufficient clarity what is proposed to happen". Sweeney J, against the background of decisions in Metrobus and British Airways, agrees with those submissions and concludes that there is a serious issue  to be tried. However, he further concludes that the defendant would have little chance of succeeding in a trial and so the balance of convenience means that the injunction should be granted.

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NEUTRAL CITATION NUMBER: [2010] EWHC 501 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS' BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

17th February 2010
BEFORE:

THE HONOURABLE MR JUSTICE SWEENEY 

BETWEEN:

MILFORD HAVEN PORT AUTHORITY (Applicant)

- and -

UNITE THE UNION (Respondent)

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MR J COHEN appeared on behalf of the Claimant

MISS R TUCK appeared on behalf of the Defendant

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Approved Judgment
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MR JUSTICE SWEENEY:  
1. The claimant, the Milford Haven Port Authority, seeks an injunction against the defendant, Unite the Union.  The terms of the injunction have yet to be finalised, but its effect would be to prevent industrial action by members of the defendant union otherwise planned for tomorrow, 18 February 2010.
 
2. The central issue in the application is the extent to which the strike notices delivered on 10 February 2010 do or do not comply with the provisions of section 234A(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act").
 
3. It is necessary to set out some aspects of the background, which is dealt with in some detail in the statement of the claimant's chief executive, Mr Sangster.  Until the beginning of this year the claimant ran a final pension scheme for most of its marine and administrative staff.  By last year the deficit in that scheme was in the order of £9m.
 
4. On 1 April 2009, the claimant informed its staff, and others, that it was going to carry out a review of the scheme.  At the conclusion of the review, and after consultation, the claimant put forward a Career Average Revalued Earnings Defined Benefit arrangement to take the place of the previous scheme.  On 1 October 2009 the claimant began an extensive consultation exercise with its employees, and the defendant, about the suggested new arrangement.  In the result, a number of changes were made.
 
5. On 17 December 2009 the claimant wrote to its employees indicating that the amended arrangement would be brought into force on 1 January 2010, and that the employees would need to indicate which of the options within the new arrangement they wished to choose.  In January 2010 the defendant gave notice of its intention to ballot three separate groups of the claimant's employees, namely the pilots; the launch crews, consisting of seamen, seamen relief mates, jetty hands, watch fitters and coxswains; and the port control staff.  In each case the subsequent ballot papers asked two questions: 1. "Are you prepared to take part in strike action?"; and 2.  "Are you prepared to take part in industrial action short of strike action?"
 
6. The outcome of the ballots was as follows.  All 17 pilots who voted, voted in favour of strike action, and 16 of them (with one invalid voting paper) voted in favour of participation in action short of a strike.  As to the launch crews, 18 voted in favour of participation in strike action with seven against, whilst 22 voted in favour of participation in  action short of a strike with three against.  The port control staff voted against taking either strike action or any industrial action short of it.  Whilst this was all in progress discussions continued between the claimant and the defendant, although in the event those discussions came to nothing.
 
7. On 10 February 2010, the defendant sent two strike notices to the claimant, one relating to the pilots and the other to the launch crews.  The notice in relation to the pilots was dated in error 10 January.  Taking that letter as an example, the body of it read as follows:

"I hereby give notice that your employees who are members of Unite the Union employed by you at Milford Haven, Pembrokeshire in the category of pilots will be taking part in industrial action.  I believe that the total number of your employees who will be taking part in the industrial action is 18.  Please note that the above description has been prepared from central membership records which have been checked and updated as necessary.
 
The explanation how we arrived at the information with regard to the members who all pay union subscriptions by means other than check off is information in our possession held in any document, including electronic form, and in the possession of any officer or union employee.  In addition, this has also been checked with Mr Will Allen.
 
The action will be continuous and discontinuous.  The continuous action will consist of an overtime ban, work to rule, not providing a call?out service, not covering absenteeism and withdrawal of goodwill and will commence on February 18 2010 at 6.00 am.  In addition, our members concerned will not  handle any ships of more than 65,000 gross tonnes from 6.00 am on February 20 2010.  The discontinuous action will consist of a 48 hour stoppage commencing at 6.00 am on February 18 2010, concluding at 6.00 am on  February 20 2010.
 
I confirm our members will provide emergency cover as and when necessary. The information set out in this notice is as accurate as possible in the light of the information in the possession of the Union at the date this notice is given. I will advise you of any further action giving the relevant notice as appropriate."

8. It was following the receipt of the two notices that the claimant first sought on Monday 15 February 2010 to obtain the injunction to which I have already made reference.  In the result, on undertakings being given by the defendant, the application was adjourned for what turned out to be 24 hours. Clearly, any discussions came to nothing, and thus the application came back before me yesterday, Tuesday 16 February, in the afternoon.
 
9. As to the legal background, Mr Cohen for the claimant drew my attention at the outset to two authorities in particular.  Firstly, in Metrobus Ltd v Unite the Union [2009] EWCA Civ 829; [2009] IRLR 851 at paragraph 41 Lloyd LJ recited with approval a summary of the purpose behind the legislation given by Robert Walker LJ in NURMT v London Underground [2001] IRLR 228 at paragraph 45 of his judgment, when he said as follows:

"Although the three points were argued as separate points they must all be approached in my view by considering the legislative purpose of the amendments made by the 1999 Act. Under section 226A(2)(c) and section 234A(3)(a) in their original form the clear legislative purpose was to enable an employer to know which part or parts of its workforce were being invited to  take industrial action in order that the employer could first try to dissuade them and, secondly, and so far as unsuccessful in its first aim, make plans to  avoid or minimise disruption and continue to communicate with the relevant  part or parts of a workforce that required the employer to be able to ascertain (that is identify) the  relevant employees."

10. Secondly, the judgment of Cox J in British Airways plc v Unite the Union [2009] EWHC 3541 in which at paragraph 82, she said:

"I do not consider that the breaches of these statutory provisions should be described as technical failures.  A more accurate description is perhaps that they are breaches of technical requirements.  Whatever the correct description however and notwithstanding the overwhelming support for industrial action  demonstrated by Unite's membership, the fact remains that these are procedural requirements contained in an Act of Parliament which all trade  unions must currently comply with if any call for industrial action is to be lawful and the union is to have immunity from suit."

11. In fact it is common ground between the parties that I am bound by the Metrobus case, that citation of European case law is inappropriate, and that Cox J's approach in the BA case is correct.
 
12. Section 234A(1) and (3) of the 1992 Act provide as follows:


 
"(1) An act done by a trade union to induce a person to take part, or continue to take part, in industrial action is not protected as respects his employer unless the union has taken or takes such steps as are reasonably necessary to ensure that the employer receives within the appropriate period a relevant notice covering the act.

(3) For the purposes of this section a relevant notice is a notice in writing which –

(a) contains –

(i) the lists mentioned in subsection (3A) and the figures mentioned in subsection (3B), together with an explanation of how those figures were arrived at; or 

(ii) where some or all of the affected employees are employees from whose wages the employer makes deductions representing payments to the union, either those lists and figures and that explanation or the information mentioned in subsection (3C), and

(b) states whether industrial action is intended to be continuous or discontinuous and specifies –

(i) where it is to be continuous, the intended date for any of the affected employees to begin to take part in the action; 

(ii) where it is to be discontinuous, the intended dates for any of the affected employees to take part in the action."

13. The definitions of continuous and discontinuous are set out in subsection (6) of section 234A, which I need not quote.

14. Against that background, on behalf of the claimant Mr Cohen submits, in summary, that: 1. The purpose of the notice requirement is plainly to give an employer clear notice of the action proposed.  2.  Whilst there is nothing in the 1992 Act as amended which makes clear whether both continuous and discontinuous action may or may not be taken at the same time, the notice provision in section 234A(3) is crystal clear that the action stated in the notice must be continuous or discontinuous, not both.  Had Parliament wished to permit a notice to deal with both, it would have done so by the simple use of the words "and/or", but it did not. 3. Hence, he submits, there being no ambiguity in the wording of the subsection, I should give it its ordinary meaning. The more so as that ordinary meaning is clearly in harmony with the purpose of the requirement.  4. The content of the notices served on 10th February 2010 only serves to underline the correctness of that approach.  The continuous and discontinuous periods described are mutually inconsistent and confusing, such that it is simply not possible for the claimants to deduce with sufficient clarity what is proposed to happen.  5. Thus, in any event, the notices also fail to provide the requisite details of intended date or dates of action in terms sufficiently clear to comply with the requirements of section 234A(3). 

15. On the defendant's behalf, Miss Tuck submits, in summary, that: 1. The effect of section 243A(3) is not that the notices must deal with either continuous or discontinuous action, but rather that, if anything, it prohibits the actual carrying out of both such forms of action contemporaneously with each other.  2.  Thus it was appropriate for the notices to deal with both forms of action in the one notice.  3.  In any event, although the notices could have been more happily phrased, they did give a sufficiently clear indication of what was actually intended, which, she asserts, was that there would be discontinuous action from 18 to 20 February 2010 and thereafter continuous action - albeit that the notices say that both forms of action will start on one and the same date, 18 February, which would, on her first argument, be illegal.
 
16. It seems to me that, for the reasons that he gave, Mr Cohen's submissions are plainly right.  Accordingly, I conclude that there is a serious issue to be tried.  There has been no dispute before me that damages would not be an adequate remedy.  Rather, the debate has centred on the precise nature of the balance of convenience test to be applied, and its outcome.
 
17. On the face of it, the factual balance of convenience lies in favour of granting the injunction.  As Mr Cohen points out in his skeleton argument: 1.  The defendant loses nothing by carrying out lawfully in the future what it seeks to carry out now - as to which it is unnecessary for me to decide, although it was touched on in argument, whether any further action could now be taken on the basis of the original ballot.  2.  Given the lack of clarity in the notices, the claimant has not been able to make appropriate arrangements to deal with whatever action is intended, and thus stands to suffer very significant inconvenience and damage if relief is not granted.  3.  In accordance with the concession made on the behalf of the defendant in the British Airways case, it is also appropriate to take into account the effect on third parties, both those involved in the oil and gas refineries at Milford Haven, and in the ships currently out at sea, in relation to whom considerable resultant damage is foreseeable.
 
18. As to the law, Miss Tuck submits that the American Cyanamid test is only a starting point where industrial action is in issue, given the provisions of what is now section 221 of the 1992 Act.  This requires the court, in exercising its discretion whether to grant an injunction, to have regard to the likelihood of the Union succeeding at trial in establishing any matter which would afford a defence under either sections 219 or 220 of the 1992 Act.  Miss Tuck relies on section 219(1) and (2) which provide protection from certain tort liabilities.  Subsection (4) of section 219 is in the following terms:

"Subsections (1) and (2) have effect subject to sections 222 to 225 (action excluded from protection), and to sections 226 (requirement of ballot before action by trade union) and 234A (requirement of notice to employer of industrial action); and in those sections "not protected" means excluded from the protections afforded by the section or, where the expression is used with reference to a particular person, excluded from that protection as respects that person."

19. Mr Cohen argues, based on certain passages from the speeches in NWL Limited v Nelson & Laughton [1979] ICRH 67 HL and Dimbleby & Sons Limited v National Union of Journalists [1984] ICR 386 HL, for a somewhat more nuanced approach than that advocated by Miss Tuck, albeit that he himself described the difference between the two approaches as dancing on the head of a pin.

20. In the end, I take the view that I do not need to decide on the difference of approach, such as it is, between the parties on this issue.  I am content to proceed on Miss Tuck's approach. The more so as that is in harmony, as it seems to me, with the approach of Cox J in the British Airways case.  Applying that approach I conclude, essentially for the reasons already given in resolving whether there is a serious issue to be tried, that there is very little likelihood of the defendant succeeding in its defence at trial.
 
21. Accordingly, given the factual balance to which I have already referred, I find that the balance of convenience favours the claimant, and therefore grant the injunction in the terms now to be determined.