C0/3441/2003

Neutral Citation Number: [2003] EWHC 2035 Admin

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Monday, 11 August 2003

B E F O R E:

HIS HONOUR JUDGE WILKIE

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THE QUEEN ON THE APPLICATION OF GATWICK EXPRESS

(CLAIMANT)

-v-

CENTRAL ARBITRATION COMMITTEE

(DEFENDANT)

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Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

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MR JAMES LADDIE (instructed by EEF, London, SW1H 9NQ) appeared on behalf of the CLAIMANT

The Respondent did not appear and was not represented.

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J U D G M E N T

(As approved by the Court)

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1. HIS HONOUR JUDGE WILKIE: This is an application by Gatwick Express Limited for permission to seek judicial review of a decision of the Central Arbitration Committee ("CAC"). It has been adjourned into open court in order to give the CAC and the interested party, the TSSA, the opportunity to be heard if they so wish.

2. Having considered the position of the CAC, which is expressed to be neutral, and the position of the TSSA, which has supported the position of Gatwick Express Limited, I have no hesitation in granting permission for an application for judicial review to be made. At the request of Mr Laddie, who appears for Gatwick Express, I am also content to treat today as the substantive hearing of the application for judicial review. It concerns the application for recognition by Gatwick Express of the TSSA as a bargaining partner in respect of a limited bargaining unit, there having previously having been disagreement between the parties as to the bargaining rights which should be wanted.

3. The application was made by TSSA to the CAC on 9 April 2003. It was accepted as a valid application on 14 April. On 4 July 2003 the parties not having been able to reach agreement as to what was the appropriate bargaining unit, the panel of the CAC defined the bargaining unit as being all managerial staff below executive grade employed by Gatwick Express at the company's premises at 52 Grosvenor Gardens, London, Gatwick Airport station and Stewarts Lane depot, Battersea. The bargaining unit specifically excluded all the workers who reported directly to the managing director. The bargaining unit having been fixed, paragraph 21(3) of schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 then required the panel to proceed with the application. Paragraph 22 of schedule A1 deals with such applications. Subparagraph (2) provides that:

"The CAC must issue a declaration that the union is (or unions are) recognised ...."

if one or other of two conditions is satisfied. The second condition (b) is that:

"The CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union"

4. It was common ground that there were a total of 38 workers in the bargaining unit of which 20 were union members thereby giving the majority of the workers constituting the bargaining unit members of the union. Therefore paragraph 22(2)(b) was satisfied. However paragraph 22(3) of the schedule provides that:

"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."

5. The three qualifying conditions are set out in paragraph 22(4). The relevant one for today's purposes is (b) which reads:

"A significant number of the union members within the bargaining unit inform the CAC that they do not want the union .... to conduct collective bargaining on their behalf."

6. At its hearing the panel had before it 22 letters from members of the bargaining unit which stated that they were opposed to recognition. Eight of these were signed by union members. The letters were in standard form, typed on company headed notepaper. It is clear that seven of the eight letters from union members had been sent to CAC by Gatwick Express's Human Resource Department. The eighth letter, in identical terms, had apparently been sent direct to the CAC by the union member. The letters are addressed to the CAC. In the body of the letter the person signing it says:

"I would like to assert to you that I am against any union recognition for Gatwick Express management and this letter is evidence of this fact."

7. Notwithstanding the presence before it of eight out of twenty letters from union members objecting to recognition being granted, the CAC panel decided that none of the three conditions in paragraph 22(4), in particular as set out in 22(4)(b), were satisfied. This conclusion appears to have been reached on the following grounds set out in paragraph 36 of the decision:

"The panel takes the view that although the letters were addressed to the CAC they had not been received by the CAC. It is the Panel's opinion that there are difficulties in attesting to the validity of employee opinion when workers are required to indicate their views to their employer either by returning a pre-typed and named letter opposing recognition to the Senior Executive responsible for HR, or if they were in favour of recognition, being instructed not to return the letter. Accordingly the Panel places no evidential weight on the letters that were produced at the hearing."

The letter went on to conclude that the one letter which it had received direct from a Union member did not amount to a significant number so as to satisfy condition 22(4)(b). It went on to add:

"It is significant that none of those who signed the letter opposing recognition had resigned from the union. Indeed evidence had been provided that one further manager in the bargaining unit had recently rejoined the union."

Accordingly, the panel found the condition was not met.

8. The approach of the CAC panel has been criticised as wrong in law and/or perverse. Judicial review of the CAC's decision is only available if the CAC have acted either irrationally or made an error of law as established in the case of R v Central Arbitration Committee ex parte Kwik-Fit (GB) Ltd [2003] EWHC 277 (Admin) in a citation from the judgment of Buxton LJ. The claimant contends that the defendant's approach was wrong in law or perverse for a number of reasons:

(1) It imported into paragraph 22(4)(b) a requirement that the CAC has to be informed direct by a worker pursuant to that paragraph and in writing.

9. It is said that that is not something which can be read into the paragraph.

(2) In the absence of any suggestion that any of the union members were compelled to sign and return the letters, and in the face of covering letter which made it clear they were not so compelled, it is said that the CAC panel's implication that the validity of the employee's opinion is extinguished is either wrong in law or is perverse.

(3) The fact that the panel was happy to accept as evidence, and take into account, the one letter which was sent direct by a union member even though it was in identical terms and produced in the same way, except that it was sent direct rather than through the conduit of the claimant's Human Resource Department, is also used in support of the contention that the CAC's approach was either wrongful or perverse.

(4) The passage in paragraph 36 which asserts that, although the letters were addressed to the CAC, they had not been received by the CAC, is said to be perverse in the sense that it was absolutely plain that the CAC had received the letters because they were before the panel.

(5) It is said that the panel took into account an irrelevant factor. That was the fact that none of the authors of the seven letters had resigned from the union. This has helped form their decision to give no weight whatsoever to the letters which those seven had signed, and returned to their employer, knowing that they would be submitted to the CAC as evidence of their objection to recognition being granted.

10. It seems to me that these are overwhelming reasons pointing to an error of law by the CAC and that accordingly the decision of the CAC should be quashed in accordance with the remedy sought in section 6 of the judicial review claim form. This outcome is supported by TSSA itself.

11. Mr Laddie, however, asks that this court does not limit itself to merely quashing the panel's decision and remitting to the panel the question whether receipt of letters of objection from eight out of twenty union members constitutes a significant number of members. He says that a number which constitutes 40 per cent of the relevant figure is, on any view, a significant number. The panel would inevitably be obliged to conclude that the condition under paragraph 22(4)(b) was satisfied. That would trigger the obligation of the CAC to give notice that it intended to arrange for a secret ballot.

12. Mr Laddie has pointed out that, as has been said by this court in the case of R (on the application of British Broadcasting Corporation) v Central Arbitration and BECTU [2003] EWHC 11375, proceedings before the CAC are intended to be:

"....informal, non-legalistic and conducive to good industrial relations rather than litigation. The process under schedule under A1 is designed to encourage a speedy momentum rather than delays. The intervals between successive stages are specified and they are short."

13. Mr Laddie says that enough time has already been wasted in this matter and that this court should make the decision for the CAC in the light of the overwhelming statistical evidence that eight out of twenty is a significant number. He points out that otherwise a panel meeting would have to be arranged which would delay matters by several weeks. The formality of such a panel meeting would have to be reflected by his client and, no doubt the TSSA, in considering both whether to attend and what attitude to strike. He says that it would be entirely appropriate in these circumstances for this court to determine that the second condition was satisfied; ie that a significant number of Union members have informed the CAC of their objection and for this court to order that the CAC should give notice to the parties that it intends to arrange for a secret ballot. He says that would result in the arrangements for the secret ballot to be set in train whereas otherwise the matter would be subject to delays, perhaps of weeks. As I indicated, the CAC has adopted a neutral attitude to this application. It indicated in its respondent's notice that it anticipated that, if the decision were quashed, it would be for the CAC to take the decision afresh.

14. The Chairman of the CAC has written to the court by letter of 1 August 2003 expressing concern that the claimant is intending to seek an order not simply quashing the order of the CAC but also directing the holding of the ballot. He has said that:

"This is a matter that CAC would take very seriously as a matter of principle. If the CAC's decision is quashed then of course the panel will reconsider it de novo in accordance with the guidance from the Administrative Court. I would respectively submit that it is wholly inappropriate for the Court to order a ballot when the issue is one for the CAC acting in accordance with its obligations as clarified if appropriate by the court to decide."

The letter concluded by stating that he had prepared it, possibly prematurely, on the point of his departure on 1 August without knowing whether it was necessary Mr Laddie has pointed out, matters have developed quite significantly since 1 August because there is now before the court an agreement between the claimant and the interested party, the TSSA, which sets out the order that they are both agreed the court should make. It is a document signed on behalf of the TSSA on 7 August and on behalf of Gatwick Express with today's date. The terms of the agreed order they invite the court to make are:

1. The claimant be granted permission to proceed with the application for judicial review.

2. The decision of the panel of the CAC promulgated on 11 July 2003, in which the panel declared that the TSSA be recognised by the claimant as entitled to conduct collective bargaining on behalf of the bargaining unit be quashed.

3. The panel give notice to the parties that it intends to arrange for the holding of a secret ballot pursuant to paragraph 22(3) of Schedule A1 to the Trade Union Labour Relations (Consolidation) Act 1992 and hold a secret ballot in accordance with the relevant provisions of Schedule A1. That is the remedy which the claimants have sought throughout. This particular element of the remedy is the one which gave Sir Michael Burton concern sufficient for him to write to the court.

15. It seems to me that it is for the court to say that, in the face of silence by the interested party, it is going to take a decision that eight out of twenty is a significant number. That may well be an inappropriate course trespassing onto the territory which Parliament has specifically given to the CAC. It is quite another thing, however, where the claimant and the interested party are both in agreement that eight out of twenty is a significant number and, accordingly, in order to achieve the informality which is the hallmark of this process, they both invite the court to order the CAC to give notice to the parties that it intends to arrange to hold a secret ballot.

16. But for this agreement, I would not have acceded to Mr Laddie's request as to remedy. With this agreement, it seems to me that it would be insisting on formality beyond its appropriate measure simply to remit the matter to the panel to determine in due course. Therefore, on the substantive application for judicial review, I quash the decision of the CAC. I also issue an order that the CAC gives notice in accordance with the terms of the agreed order.

17. I think there are no orders sought as to costs.

18. MR LADDIE: No application as to costs, my Lord. There is a slight difference between the agreement between the claimant and the interested party, and the order as set out in your Lordship's judgment. I was going to point out that paragraph 3 of the agreement in the claim of the interested party the word used is "the panel, " on reflection that is wrong, it is the CAC rather than panel. Your Lordship's formulation is the correct one.