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OPINION OF LORD JOHNSTON in the Petition of FULLARTON COMPUTER INDUSTRIES LIMITED Pursuer; for JUDICIAL REVIEW OF CERTAIN DECISIONS MADE BY
THE CENTRAL ARBITRATION COMMITTEE Defender: ________________ |
Petitioners: Truscott, Q.C., Hardman; Semple Fraser, W.S.
Respondent: Dewar, Q.C.; H. F. Macdiarmid
Interested Party: Fairley; Russell Jones and Walker
28 June 2001
[1] This petition arises
from an attempt by the Iron and Steel Trades Confederation (“ISTC”) which are
compeared as an interested party to gain trade union recognition for the
purposes of collective bargaining from the petitioners. As no agreement could be reached between the
employer and the trade union, the matter was referred to the Central Arbitration
Committee (“the respondent”) under and in terms of the Trade Union and Labour
Relations Consolidation Act 1992 as amended (“the Act”) and in particular
Section 263(a) and Schedule A1(“the Schedule”).
Certain decisions were taken by the respondent which are the subject of
a challenge by way of Judicial Review in this petition.
[2] The petitioners are an
electronic manufacturing company with a number of plants, this case being
concerned with employees at its plant in Ayrshire.
[3] During October 2000 the
petitioner announced potential redundancies amongst employees in Ayrshire by
letter dated 7 November 2000. ISTC
sought recognition from the petitioner to be entitled to conduct collective
bargaining on behalf of the employees of the petitioner in Ayrshire. The petitioner was not prepared to agree and
did not in fact respond, being more interested in an arrangement with a rival
union, AEEU, which also had employees in the relevant plant. On 7 December 2000 ISTC applied to the
respondent for recognition in respect of a bargaining unit under Part 1 of
Schedule A1 to the Act. A panel was
established by the chairman of the respondent in accordance with Section 263(a)
of the Act, to discharge the functions of the respondent in connection with the
application. A case manager was assigned
to assist the panel in that respect. On
13 December 2000 the petitioner received a letter from the respondent
purportedly dated 29 November 2000 indicating that an application had been
received from ISTC on 8 December 2000.
In that letter the respondent set out inter alia the procedure that would be followed and stated inter alia as follows:
“Please note that as all information provided
in support of the union’s formal application must be copied to you, all the
information which you provide in response to this letter will be copied to the
union. Thereafter there may be informal
communication and discussions in pursuit of the CAC’s duty to help the parties
reach the voluntary agreement and it is possible for the CAC to be given
information on a confidential basis during that period. However, this confidentiality is qualified if
before the decision point the CAC find that it must take account of any such
information in order to reach the decision in the interests of fairness, it may
be obliged to make it or some part of it available to both parties so that it
may be properly tested. If this need
arises the parties without the information will be given notice of it in
advance. If you wish to discuss any
information informally with confidentiality guaranteed you may of course
contact ACAS about this whether or not they are already involved”.
[4] Thereafter
certain information was provided both by the petitioner and ISTC. By letter dated 19 December 2000, the case
manager issued to the petitioner a decision by the panel that the application
was accepted by CAC, and the letter went on to explain that if an agreement
could not be reached between the parties it would be for the CAC to determine
the appropriate bargaining unit in terms of the process laid down in the
Schedule. No such agreement was reached
and by letter dated 15 January 2001 the respondent notified the petitioner that
the hearing would take place on 1 February 2001 to decide the appropriate
bargaining unit. Representations were
invited as was attendance at the hearing.
On 2 February 2001 the respondent issued the panel’s decision that the
appropriate bargaining unit at the relevant plant was all hourly shop floor
employees excluding supervisors and clerical staff. This was the bargaining unit that had been
proposed by ISTC.
[5] In
accordance to the provisions of the Schedule, the panel was then required to
make certain decisions firstly in relation to the date when the issue of a
majority of workers belonging to the union within the plant was to be
determined (“the relevant date decision”), secondly, whether such a majority
existed (“the majority decision”), and thirdly whether there was in any event
the need for a ballot (“the ballot decision”).
These are the three decisions that the petitioners now challenge.
[6] In
relation to the relevant date decision there was initially some dispute at the
Bar as to how it had been struck, but counsel reached an agreed position which
was accepted by the petitioner that at the meeting on 1 February the question
of the relevant date was discussed and the date of 2 February was suggested by
the panel, no contrary view having been expressed. It follows that although there was not precise
agreement there was at least acceptance that the relevant date would be 2
February. Overall, it can thus be seen
that the legality or otherwise of this decision is overtaken by events in the
sense that its limited relevance at the end of the day was to reflect the
concern by the petitioners that having regard to the fact that there was an
ongoing redundancy situation, and at the same time a recruitment policy being
undertaken by the union, there was effectively a fluid situation (“the moving
target”) which should not be realistically assessed on 2 February, but rather
called for the matter to be assessed at the date of the application. Although Mr Truscottt appearing for the
petitioner did not therefore abandon his attack on the selection of the
relevant date, it becomes merely part of the overall picture relevant to the
context of the other two decisions.
[7] Thereafter
the case manager asked both parties to provide lists of employees, as far as
the employer was concerned of all those comprising the bargaining unit and as
far as the union was concerned a list of its members at the plant. A comparison exercise was carried out by the
case manager and she so advised the petitioner by letter dated 13 February 2001
that the relevant figure was 49.3% at the relevant date. By letter dated 15 February 2001 ISTC wrote
to the case manager requesting that the panel and she reconsider whether or not
her conclusion was correct, the union believing that they had incorrectly
excluded twelve employees from the list of members at the plant. By letter dated 21 February 2001 the case
manager informed the petitioner that the panel wished to undertake a further
check, to be satisfied about the level of the union membership. This process was challenged by the petitioner
but was nevertheless implemented. By
letter dated 1 March 2001 the case manager wrote to the petitioners stating inter alia
“ At the panel’s request the case manager had
rechecked the details of union members against the list of FCIL employees in
the appropriate bargaining unit at 02.0201.
This check shows that three hundred and ninety employees are a member of
ISTC out of seven hundred and sixty in the bargaining unit. This is 51.3%”.
That is categorised as the majority decision.
[8] At
the same time the case manager informed the petitioner that a hearing had been
scheduled for Wednesday 14 March to consider the question of a ballot. Written submissions were again invited. The hearing took place on 14 March where both
parties represented. By letter dated 22
March 2001 the respondent issued a document incorporating the ballot decision
and the declaration of it, (the ballot decision).
[9] In
order to put the legal arguments in context it is necessary to consider the
terms of the relevant paragraph which is 22 of the Schedule. It is in the following terms:
“This
paragraph applies if -
(a) the
CAC proceeds with an application in accordance with paragraph 20 or 21, and
(b) the
CAC is satisfied that a majority of the workers constituting the bargaining
unit are members of the union (or unions).
(2) The
CAC must issue a declaration that the union is (or unions are) recognised as
entitled to conduct collective bargaining on behalf of the workers constituting
the bargaining unit.
(3) But
if any of the three qualifying conditions is fulfilled, instead of issuing a
declaration under sub-paragraph (2) the CAC must give notice to the parties
that it intends to arrange for the holding of a secret ballot in which the
workers constituting the bargaining unit are asked whether they want the union
(or unions) to conduct collective bargaining on their behalf.
(4) These
are the three qualifying conditions -
(a) the
CAC is satisfied that a ballot should be held in the interests of good
industrial relations;
(b) a
significant number of the union members within the bargaining unit inform the
CAC that they do not want the union (or unions) to conduct collective
bargaining on their behalf;
(c)
membership evidence is produced which leads the CAC to conclude that
there are doubts whether a significant number of the union (or unions) to
conduct collective bargaining on their behalf.
(5) For
the purposes of sub-paragraph (4)(c) membership evidence is -
(a)
evidence about the circumstances in which union members became members;
(b)
evidence about the length of time for which union members have been
members, in a case where the CAC is satisfied that such evidence should be
taken into account”.
[10] Before
considering the matter any further it is important to note the structure of the
provision. The first step of the process
after the application is accepted in the absence of agreement and following the
establishment of the relevant date is for the CAC to be satisfied that the
majority of the workers constituting the bargaining unit are members of the
union, that is to say at least 50% or perhaps 50.1%. However, recognition is not automatic if any
of the three qualifying conditions which could be described as exceptions to be
found in sub-paragraph 4 are met (“the exceptions”). Paraphrasing those, the first one relates to
a general question of good industrial relations, but the second and third
relate to whether or not, notwithstanding the number in excess of 50% of union
members within the relevant plant in the bargaining unit, there is a
significant number thereanent who inform the CAC that they do not want the
union to conduct collective bargaining on their behalf, or membership evidence
is produced which would cast doubt whether a significant number of the union
members within the unit want the union to conduct collective bargaining. Thus there is a qualification procedure to an
automatic recognition. It has to be
observed that both these latter exceptions if to be advanced by the employer,
at least raises a question as to his knowledge of the identity of union members
among the workforce and presumably thereafter to canvass them. This
point is not without significance in the overall debate. It is also necessary to note at this stage
that in terms of sub-section 7 of the relevant section of the Act the panel is
the master of its own procedures.
[11] The
relevant parts of the ballot decision are as follows:
(2) “The
bargaining unit was determined by decision of the CAC dated 2nd
February 2001 as all hourly paid shop-floor employees, excluding supervisors
and clerical staff. In order to proceed
with the application, the CAC requested the union to supply the Case Manager
with a list of all its members in the BU as of 2nd February 2001 and
the employer was requested to supply a list of all its workers in the relevant
bargaining unit of 2nd February 2001.
(3) The
parties supplied the lists requested and co-operated with the Case Manager in
providing further detailed information to enable cross-checking of the
lists. The results of a preliminary
check were notified to the parties and to the Panel. Representations were made by the union
concerning some omissions from its membership list of paid up members employed
in the bargaining unit at the relevant date.
It provided further detailed information in support of this. FCI confirmed the accuracy of the information
it had provided on its employees at the relevant date. The Panel requested that a further check be
undertaken. This indicated 51.3%
membership. The Case Manager reported
her findings to the Panel and explained the methodology used. The Panel are satisfied that the exercise was
conducted impartially and professionally and accordingly was satisfied that a
majority of the workers in the bargaining unit members are if the applicant
union. By letter of 1st March
the Parties were informed of the outcome of this check. They were notified that a hearing would to be
held on the 14th March to determine the issue of whether a ballot
should be held. Without pre-judging that
issue, the parties were also invited to make representations on what form of
ballot should take, were one to be held.
Written submissions were made to the CAC by each party and copied to the
other party prior to the hearing.
(13) We
have given thorough consideration to each of the three qualifying conditions in
para 22(4) in the light of the evidence before us and drawing on the industrial
relations knowledge and expertise of Panel members.
(14) The
parties were agreed that condition (b) was not applicable on this case given
the absence of any evidence. Having
considered the circumstances in which members joined the union and the length
of membership, it is the Panel’s view that condition 22(4)(c), relating to
membership evidence, also is not applicable in this case. We note that the ISTC increased its
membership during a period of recent redundancies but we do not accept the
Company’s interpretation of this. We
note that ISTC has retained those members and gained others since. The literature used to recruit new members
and the application form which is signed to authorise payment of subscriptions
makes clear that the union seeks to act on behalf of its members through
collective bargaining.
(15) The
remaining consideration, under para 22(4)(a), is whether the CAC is satisfied
that a ballot should be held in the interests of good industrial
relations. We are sensitive to the fact,
noted by the Company, that the majority in this case is a slender one and note
that the Company does not believe the majority of the relevant employees want
the ISTC to be recognised. To require a
ballot on this ground, however, without further evidence that a ballot is in
the interests of good industrial relations, would impose, in effect, a
threshold for recognition without a ballot paper than that stipulated by the
effect, a threshold for recognition without a ballot higher than that
stipulated by the legislators. It
is clear to us from the evidence presented during the case that the company’s
opposition to the union does not rest simply in its doubts about the extent of
employee support for it, doubts which in any case have not received evidential
support.
(16) Further,
we feel that in this case the holding of a formal ballot, with each side
campaigning for employee support for its position, would likely to engender
further antagonism and divisiveness detrimental to developing good industrial
relations. It was common ground between
parties, and clear to the Panel, that the existing states of relations is poor
and the Company indicated during the hearing that they thought there were
likely to be difficulties and disagreements during the access period prior to
any ballot. Drawing on its industrial
relations experience, the Panel accords with the view strongly argued by the Union
that the development of good industrial relations is likely to be furthered by
the parties meeting around the negotiating table as soon as possible. We feel that campaigning around the holding
of a ballot would be likely to exacerbate the already difficult situation as
well as delaying the opportunity for the Parties to begin to build a
constructive relationship.
(17) For
the reasons given, therefore, we find that none of the three qualifying
convictions applies on this case”.
[12] I
heard a wide ranging debate in which reference was made to the following
authorities.
[13] Barrs v British Wool Marketing Board 1957 SC 72, R v Home Secretary ex parte
Doody 1994 1 AC 531, Ritchie v Secretary of State for Scotland 1999 SLT
55, R v Home Secretary ex parte Fayed 1997 1 AER 228, Young v Fife Regional Council
1996 SLT 331, McMurdo v McCracken 1907 SCJ 1, Associated Provincial Picture Houses Ltd v
Wednesbury Corporation 1948 1KB, 233,
R v Chief Constable of Sussex ex parte International Trailers Ferry Limited
2001 AER 129, R v Civil Service Appeal Board ex parte
Cunningham 1991 4 AER 310, Stefan v
The General Medical Council 1999 1
WLR 1293, Van de Hurk v The Netherlands 1994 18 EHRR 481, Wordie Property Co. Ltd v Secretary of State for Scotland 1984 SLT
345, Sigurdur Sigurjohnsson v Iceland 1993 16 EHRR 462, Bass Taverns v Clydesdale Bank 1995 SLT 1275, Dombo
Beheer BV v The Netherlands 1994
18 EHRR 213, Gallagher v Stirling Council 2001 SLT 94, Selvarajan v Race Relations Board 1979 1 AER 12.
[14] The
respondents also referred to Benyon on
Statutory Construction, Part 27 and
also referred me to two decisions of the Central Arbitration Committee which
are only reported in their own records namely Graphical Paper and Media
Union and Satex Press Northern
Limited, case number TURI/21/00 and GPMU
v Red Letter Bradford Limited, case
number TU12000.
[15] At
the end of the day there was not much in the way of dispute between the parties
as to the general law. On the two main
issues of fairness in the context of natural justice and adequacy of reason in
relation to an administrative decision, even on a quasi judicial basis, parties were agreed that the CAC had to act
in accordance with the principles of natural justice which essentially required
even handed treatment to both parties, an opportunity to make representations
in respect of a case disclosed against a compearing party and generally a
recognition of the need for there to be equality of arms. Although a passing reference was made to
Article 6 of the European Convention on
Human Rights again it was recognised that that provision added nothing to
the principles of natural justice enshrined in the common law of Scotland.
[16] Secondly
with regard to the question of adequacy of reasons, again there was little
dispute between the parties on the general law.
In general terms, a party had to know why he had won or lost from the
content of the relevant decision. The
decision in question must not take into account, on the face of it, matters
that should have been left out of account nor leave out of account matters that
they should have taken into account (Wordie
supra). On the other hand there will
be cases where the decision maker was not required to give any reasons at
all. However, it was also recognised
that if he did give reasons then they could be scrutinised against the general
adequacy test, albeit with some refinement.
[17] In
this respect I would adopt with gratitude the analysis of Lord Macfadyen in Gallagher supra where he says at
paragraph 36:
“I agree with what Lord Nimmo Smith said in Asda Stores namely that if reasons are
given for a decision when there is no obligation to give them, they may
nevertheless be subjected as scrutiny.
The purpose of such scrutiny in my opinion is to see whether the reasons
expressed disclose a flaw on the decision.
Thus if voluntarily given reasons disclose that the decision maker
misdirected himself as to the nature of the decision entrusted to him or took
into account irrelevant material or ignored the relevant material or reached
the conclusion which no reasonable decision maker properly directing himself
could have reached on the material for him, the decision will be open to
challenge on the ground discovered by scrutinising the reasons. But in that event it is the flaw in the
decision disclosed by the reasons that is ground for reduction, not the
analysis of the reasons. In my opinion,
it is only where the decision maker is under a duty under statute or at common
law to give reasons for his decision that his reasons must comply with the Wordie Property test and failure to give
reasons which pass that test will constitute ground for setting aside the
decision. Provided such reasons as he
gives do not disclose the decision is itself flawed, a decision maker who need
not give reasons does not render his decision liable to be set aside by giving
reasons which do not adequately explain his decision”.
[18] His
Lordship is thus drawing a distinction between the situation which applies when
reasons are required and a situation where they are not required but nevertheless
given. In the latter context, the
decision in question will only fall to be reduced if the reasons given disclose
a flaw in the reasoning, rather than just being inadequate to support the basic
decision. I completely agree with that
approach.
[19] Certain
parts of the debate also addressed the extent to which the administrative law
has moved on as to perhaps loosening of the fairness test originally stated
fairly bluntly by Lord Greene M.R. in Wednesbury
but restated by Lord Mustill in Doody
supra. I do not consider the point
arises for any further consideration in this case since at the end of the day I
consider Mr Truscott’s criticisms of the decisions in question were adequately
encompassed within the passage I have quoted from Gallagher supra.
[20] As
I have indicated previously the issue in relating to the relevant date has been
somewhat overtaken by events given the agreed position accepted by the parties
as to how it was struck. But
nevertheless it is important to bear in mind that it did not reflect the
concern as I have stated of the employer that there was effectively “a moving
target” by reason of ongoing redundancies and recruitment. To strike an artificial date was accordingly
artificial and so submitted the petitioners.
As I have again indicated previously, this may reflect upon the nature
of the decision to be made in relation to the legality or otherwise of the
ballot decision, but does not in itself render the decision as the relevant
date reducible and I pass from that point.
THE MAJORITY DECISION
[21] Mr
Truscott’s attack upon the majority decision was mounted on two separate
fronts.
[22] In
the first place he said a proper construction of the decision in its amended
form as found in the letter of 1 March 2001 (6.10 of process), quite clearly
indicated that the decision had been taken by the case manager and not by the
panel at all. While it might be
competent, it was submitted, for the panel to delegate what could be described
as “legwork” to the case manager, the decision had to be that of the panel
having regard to the terms of the Schedule which required “the panel to be
satisfied” upon the issue. The decision if delegated was thus beyond the powers
capable of being exercised by the panel and was therefore ultra vires and reducible.
[23] Secondly,
quite separately, Mr Truscott submitted
that his clients had been unfairly treated in the way in which the matter had
been handled. Against the background of
the confidential basis of the arrangements, they had provided the panel with
lists of employees and equally the union had provided with lists of members but
that latter was not disclosed to the employer.
The employer accordingly had no means of ascertaining what the correct
result ought to be. It was therefore
essential for the matter to be handled carefully and fairly, and in fact it was
not, upon the basis that having struck in the original decision of 49.3% the
resulting figure of 51.3% was struck after receiving additional information
from the union which indicated to the employer that there were only an
additional twelve people which could be eligible, and yet in the result a
figure of fifteen was found. It was
stated that the employer had no way of ascertaining how the panel had reached
this conclusion and accordingly there was no equality of arms or fair
treatment. At the Bar document No. 12 of
process was produced by the respondent which on the first sheet indicated the
actual numerical calculations involved, and on the second sheet by way of
narrative how the additional fifteen workers had been found. The document was not disclosed to the
petitioners at the relevant time and certainly not in relation to page 2 which
was the vital part of the ingredients of reasoning. However, when Mr Truscott was replying to the
submissions of Mr Dewar and Mr Fairley for the respondent and interested party,
he accepted that if his clients had seen that the relevant document at the
time, they would have been bound to accept the position and this is of a
considerable significance. Finally, Mr
Truscott however submitted that the concerns that the petitioner had as regards
the relevant date and the moving target, again heightened the need for full and
frank disclosure of reasons to be given in relation to the majority decision
which had not happened.
[24] In
response to these submissions, Mr Dewar and Mr Fairley took common ground to
the effect firstly, that as a matter of fact the case manager had consulted
individually the panel members before issuing the majority decision, although
there had been no formal meeting. It was
therefore submitted that the panel members had approved the decision. In any event however the letter should not be
scrutinised too carefully and it was apparent from the substance of the later
decision, that the whole process adopted by the case manager had been
supervised by and accepted by the panel which was therefore the decision
maker. Reliance should be made upon
paragraph 3 of the decision of 22 March which I have already quoted.
[25] With
regard to the attack based on the general question of fairness and natural
justice Mr Dewar emphasised strongly that the confidential nature of the
arrangement which had been agreed to by the employer, was bound to tie hands to
some extent as to how he could check the relevant figures. While it would have been preferable perhaps
to let the employer see both sheets of document 12 of process, the failure to
do so did not invalidate the process. In
any event the complaint was without substance on the hypothesis that had it
been proffered, the petitioner would have held himself satisfied upon its
terms.
[26] I
can deal with these points quite shortly.
[27] As
regard to the question of delegation, while of course I accept at once that the
statute does not contemplate the decision maker being any person or persons
other then the panel on the question of being “satisfied”, I feel bound to take
a practical view of the situation. The
delegation to the case manager is a perfectly legitimate way for the panel to
set about its work and indeed from the practical point of view it is hard to
see how it could do other unless the members themselves are individually going
to embark upon the exercise. I am
entirely satisfied that as a matter of general proposition in the absence of
any attack on the integrity of the case manager, it is inconceivable that she
would have propagated the decision without consulting the panel members. I am therefore not prepared to construe the
relevant paragraph of the relevant letter on the narrow basis contended for by
Mr Truscott, but in any event even if on the face of it, it would bear such a
narrow interpretation, the whole matter is fleshed out in paragraph 3 of the
main decision and accordingly I do not consider that it is appropriate to hold
as a matter of fact that the decision was taken by the case manager alone.
[28] The
issue of unfairness is more difficult although complicated by the question of
confidentiality. However it has to be
noted that the second page of 12 of process does not actually breach confidentiality
since it only specifies numbers and does not disclose names. On the face of it against the background of
their concerns about the moving target, it is not without significance that the
employer having initially been told that there might be an additional twelve
people, is confronted with a decision without further representation which
produces a total of fifteen. It could be
said therefore there had been some reasons given for the decision which was not
adequately vouched. I have to confess
that if the matter was still material it would have caused me some difficulty
since on one view the test stated in Gallagher,
about flawed reasoning, might be met even, if there was no duty to give
reasons in the first place, because of a fundamental inconsistency. However, as soon as Mr Truscott accepted that
if his clients had received that information contained in number 12 of process,
they would have been satisfied or at least been bound to accept the position,
the position changes. It follows that I
do not consider that there is any material issue to be determined as regards
the lawfulness of the majority decision in a practical sense. In my opinion, while natural justice depends
upon the notion that justice must be seen to be done and the principle can be
breached if the opportunity of an injustice to occur exists even if such in
practical terms has not apparently occurred, the position in my opinion is
different when the evidence discloses that the complaint has had positively no
substantive effect. The substance of the
complaint thus evaporates.
[29] Lest
I be wrong in this approach, I would also venture the view with some hesitation
that at the end of the day the principles of natural justice with regard to
unfairness were not breached in this case since at the end of day the exercise
was bound to be one that had to be conducted against the background of
confidentiality by the panel comparing two lists which were by agreement not
being disclosed to the opposite party. I
therefore accept Mr Dewar’s contention that while it might have been better to
have provided the additional information contained in No. 12 of process (Sheet
2) at the time the failure to do so does not render the decision flawed against
the test stated in Gallagher. They might be inadequate, but they do not
disclose a flaw of reasoning.
[30] I
accordingly consider the attack upon the majority decision fails.
THE BALLOT DECISION
[31] In
this respect Mr Truscott’s attack upon the decision was entirely based on
rationality or lack of it in the context of Wednesbury
supra and Wordie supra, his basic
proposition being that in the essential paragraphs of the decision that is to
say 14, 15 and 16 where the panel was considering the applicability or
otherwise of the exceptions in paragraph 22 of the Schedule they had taken into
account matters they should not have taken into account and have left out of
account matters that they should have taken into account, this attack being
permissible notwithstanding the fact that in terms of the paragraph they were
not obliged to give reasons. They had
nevertheless done so which could therefore be scrutinised on the Gallagher approach. In general terms the reasoning was flawed
rather than inadequate in those particular respects. Those were failure to recognise the divisive
nature, it was submitted, of exceptions (b) and (c) requiring the employer not
only to ascertain who are members of the union, but also canvass them on a
pitch contrary to the interests of the union;
that in any event, the panel appeared to be influenced by the suggestion
that it was inappropriate to increase a threshold over 50% when determining
upon the need for a ballot. They had
failed to take into account the marginal nature of the majority decision
against the problems of the moving target, and they had in any event reached a
decision on industrial relations in the context of this company without taking
into account the factors in question and the possibility that the ballot might
have stabilised and improved situations rather than cause them to
deteriorate. They have therefore
speculated only as to the present state of affairs at the time of the decision
and had not looked at the long terms effect that a ballot might have in the future. This was something that if endeavouring to
assess good industrial relations on the first exception (a) the panel was bound
to take into account and their reasoning was flawed by reason of the fact that
they had left it out of account.
[32] In
this context Mr Dewar in reply emphasised that there was no need for reasons to
be given at all, compared for example with what was required under paragraph
36. But in any event the reasoning as
given did not meet the Gallagher approach
in respect of it being flawed even if there were matters which could have been
mentioned and were accordingly not contained within the decision. It was not, he submitted, appropriate to
assume that the employer was powerless when it came to ascertaining the
positions under exceptions (b) or (c).
He could canvass his employees with an open letter requiring them to
respond directly to the panel, or, poll his hourly paid workers to ascertain
what the true position was in relation to sub-section (c). In any event Mr Dewar submitted, this panel
was a highly experienced industrial jury entitled to reach its own conclusions
upon the evidence available to it as to whether it would or would not be in the
interests of good industrial relations to hold a ballot and that is what they
had done. Furthermore he submitted, that
the employer could have resorted to ACAS, as was indeed suggested by the panel
as a possibility in the original letter, for assistance in ascertaining the
opinions of the workforce.
[33] Mr
Fairley supported Mr Dewar’s position emphasising the role of ACAS as a
potential conciliator or information gatherer in the context of exceptions (b)
and (c).
[34] I
feel bound to observe that if I were to be asked to decide this matter de novo and at first instance, I would
have been inclined to take the view that a ballot has a stabilising influence
and might well improve industrial relations rather than to cause them the
deteriorate, even if there is a campaign undertaken by both sides before the
ballot is struck. I also, would consider,
personally, that exceptions (b) and (c) could have a divisive effect if an
employer was forced to go canvassing his workforce against the interests of the
union, which would undoubtedly antagonise the union management and might cause
friction between them and its members.
However, these are only personal observations and are really nothing to
the point because I am satisfied contrary to my initial reaction that
exceptions (b) and (c) are workable if the employer simply generally encourages
his employees by open letter, for example, to respond to the panel with their
views as to collective bargaining or alternatively provide, even anonymously,
evidence to the employer as to the extent of feeling about whether collective
bargaining is a desirable aim of the membership. Accordingly in my opinion the employer is in
a position in certain circumstances, speaking quite generally, to address the
issues raised by (b) and (c), without canvassing individual workers on a
personal basis, which would obviously be divisive in every respect of good industrial
relations.
[35] It
is also important to note the scheme of the process which is generally that the
need for a ballot depends upon there being no majority vote in favour of
recognition. If there is such a
majority, the exceptions are there to provide a let out in appropriate
circumstances by reference to either good industrial relations or the attitude
of the membership.
[36] It
therefore follows that I do not consider the petitioner can now complain that
the panel discussed exception (b) and (c) for want of evidence.
[37] In
the final analysis in relation to exception (a) I am satisfied that the attack
upon this decision fails also because it has not been shown that what was left
out of account on the face of the decision, namely the moving target problem,
or indeed the marginal nature of the majority were not nevertheless factors
that were bound to be in the minds of the decision maker. I consider that the fact that the decision is
silent upon that question does not render it flawed. At best again the reasoning might be said to
be less adequate than might otherwise have been desired. It seems to me that the panel have applied
their minds to the right test in relation to each of the three exceptions and
have reached decisions that which they were entitled to reach without there
being any manifest error or flaw upon the face of the record. If I were to hold otherwise, I would be
substituting my own view for that of the industrial jury and I consider that to
be wholly inappropriate. At the end of
the day the decision with regard to the applicability of the exceptions lies in
the discretion of the panel and it has not been demonstrated to me that they
exercised that discretion in any irrational or flawed way, even if there is
room for more than one view. It is
perhaps worth observing that consideration as to whether the threshold for the
need for a ballot is being raised by the exceptions is perhaps irrelevant since
Parliament plainly contemplated that in certain circumstances that could
happen. Nevertheless I cannot say that
it is not a factor which is irrelevant to the whole issue. Certainly it has to be observed that it does
not appear to have been a factor that prevented a ballot being ordered in the Red Letter case. The shoe pinches tightest for the panel, in
relation to the legality of the decision, with regard to the marginality of the
majority against the background of the moving target. It may be that lessons could be learnt from
this case in that respect as regards the future, but for the reasons given I am
not prepared to hold that the decision is flawed because it is silent on that
question.
[38] I
shall accordingly sustain the second and third pleas-in-law for the respondent
and dismiss the petition.