Monday, May 17, 2010

What's Madder Than a BA Flight Attendant? Answer: A High Court Judge

The decision by BA cabin crew to strike is barking mad. But the High Court decision today could be desribed as even madder. I have absolutely no sympathy with either the strikers or their trade union, but when either side go to court in an industrial dispute the least they can expect is justice to be done. When BA went to court the first time, they deservedly won their case as there were obvious defects in the Unite ballot. For instance, they were balloting people who were no longer working for BA, or indeed union members.

But this time it was different. The High Court found in favour of BA today because Unite had not told its members that there were eleven spoiled ballot papers when they emailed or texted them the result of the strike ballot.

So there was nothing wrong with the ballot itself.

It is this sort of decision which brings industrial relations law into disrepute. I'm glad BA cabin crew won't be on strike, but I'm concerned at how the Judge in this case defied all common logic in his findings. Surely common sense has a part to play here, as well as the literal wording of the Act. It can surely never have been meant to be interpreted in this way.

When people go to court they need to know that they are being dealt with equitibly. That applies to unions as well as employers.

42 comments:

Ciraric said...

Iain, you should know that the law must be the law. Geez, why bother only half-implementing a law?

Grand_Inquisitor said...

I agree Iain.

It is court decisions like these that brought about the rise of Trade Unionism in the 19th Century in the first place.

If I were a BA employee I would be seething - and far more likely to be militant in the future.

This is the sort of issue that can cause a General Strike, especially against a backdrop of Government ordered lay-offs. See Greece and Ireland for exemplars.

Fausty said...

I agree with Ciraric. One might argue that a judge must interpret the law, but when that happens, the judge becomes the law.

We are represented (or should be) by Parliament - not by judges.

Not good.

Ciraric said...

To be honest, I'm not going to argue that the judge's decision was the right one.

However, I'm sure it was more complicated than the media digest of it is.

FX Man said...

The common sense part is surely that the expensive UNITE lawyers should know the law and make sure UNITE implements it to the letter - at the SECOND ATTEMPT.

http://fxbites.blogspot.com/2010/05/another-kick-in-ballots.html

fyoc said...

equitably.....

Nick said...

Without having read the judgment, it seems that the judge was perfectly entitled to order an injunction. Section 231 (d) TULR(C)A 1992 clearly says that those entitled to vote must be informed of how many spoiled ballots there were.

And although BA ballotted those taking voluntary redundnacy in the first dispute pre-Christmas 2009, it made not one bit of difference to the outcome. If all of those who were wrongly ballotted turned out to vote, and voted against industrial action, the proportion in favour of striking would still have been about 90%.

I don't think people realise just what an odious piece of legislation TULR(C)A 1992 is. Anyone interested should read the Court of Appeal's Metrobus decision from 2009 to see just what a joke the procedural requirements are.

But in this instance, it is the COnservative Government which passed the Act which is to blame, not the judges who apply the provisions

The King of Wrong said...

I agree that the judge's decision seems to be out of all proportion and keeping to the letter but not the spirit of the law...

But isn't that exactly what the unions do when they arrange 24 hours strikes timed to hit commuters on two consecutive days, or four-day strikes with just one day between them as in this case? Or to cherry-pick regulations and incidents as the basis for a strike?

The whole bloody lot should just grow up.

Nick said...

The "spirit" of the law was to frustrate trade union acts by putting insurmountable barriers in the way. These procedural requirements were designed to be impossible to comply with, so many will see this as "job done". In the first case, Mrs Justice Cox referred to the “... inordinate complexity of the statutory procedures”

The fact is that if non-compliance keeps happening time and time again, it suggests there's something wrong with the law, not the lawyers (unless of course you take the view tha there should be no right to strike).

Roger Thornhill said...

How about the members offer to buy out the management and run the loss making enterprise themselves, eh? They will then be free to pay themselves what they want and have rotas arranged to suit themselves.

As long as the taxpayer does not bail them out and no company or entity is forced to use them, why not?

norman said...

I see this way: The UNITE union brought it upon themselves. The procedure has to be scrupulous, when the members are called out on strike which affects customers besides the company. The Sky News said this morning that the issue was the way the membership was informed of the ballot outcome. Very often the unions play games with membership. Some years ago, when the Association of University Teachers (AUT)- the university lecturer's union, called us the academics, out on strike, there was similar procedural issue and I tore my membership card, and crossed the pciket line.

Greg said...

The judge can't just ignore the law.

Weygand said...

De minimis non curat lex.

Unite to win Appeal

Paul Halsall said...

Good post, Iain.

Judy said...

Tut! tut! Judges sticking to the requirements of the law, as opposed to what bloggers, union officials and otherwise interested parties think should be regarded as important requirements.

Clearly and obviously mad. Whatever next? Football referees who ignore the all too obviously barmy offside rule?

Poor old Unite. So many millions that they can afford to offload so many of them on the Labour Party, yet they can't carry out the legal requirements of a ballot in conformance with the requirements of the law.

After all, if enough zillions vote in favour, why are those pernickety requirements about reporting spoilt ballot papers insisted on?

Clearly, requirements which any reasonable lawyer can interpret without difficulty are all too obviously too much to expect of the Unite union and their senior officials, who are paid how much per year?

All too obviously a plot between the judges and the Labour, oh, sorry Conservative, oh, sorry, Conservative and Liberal Democrat politicians to weaken and undermine the unions.

Breathtaking insight here, Iain. That seat in the House of Lords can't be far away.

Ruth@VS said...

Several times I witnessed unions breaking the law but the employers stood by (particularly public sector ones) and tolerated the breaches so as not to cause further conflict. I always felt it was wrong to do this, as it created a double standard. Yes, it may seem like nit-picking, but in my book it's about time employers did require full compliance with the law, and Unite should have covered themselves rather better. A technicality, yes, but the law is full of them, that's why lawyers are so rich...

norman said...

My opinion about any union is coloured by the experience I had in the Winter of Discontent in 1978. Then we took our neighbour an elderly lady who was living alone and who had a suspected angina to the A and E wing of a large hospital only to be turned away by a NUPE union thug who was manning the gates of the hospital. Precious time was lost when we had to take her miles away to a private hospital and she arived dead at this hospital gate. Any kicking that any union gets seems good for me.

Peter said...

BA should never have taken this case to court. It has dealt with its employees in a high handed and totally unacceptable manner.
This has resulted not in breaking the union hold on its members but strengthening it and leaving the militant union in control.
The only way for this to be resolved is for Walsh to go and for his successor to make peace with all BA employees. The unions will then loose most of their power.

HarveyR said...

AIUI the judge has not ruled that the ballot was invalid, but that there is a case to answer at trial and had granted the injunction to BA pending the outcome of the trial.

It could still be that in due course a trial finds that the TU *did* take reasonable steps to inform its members of the number of spoilt papers and that the ballot *was* valid.

None of this takes away from the fact that by going to court today to ask for this injunction, BA simply draws out the dispute further and makes it harder to imagine they will find a settlement other than by crushing the trade union.

Nick said...

I think the sheer complexity of the legislation is being overlooked - yes they are "technicalities", but if there was a criminal statute as complex as TULR(C)A 1992, there would (rightly) be an outcry! There is a difference between something being difficult to comply with and impossible to comply with.

Hopefully counsel for Unite will argue a human rights violation tomorrow. Given the Court of Appeal's track record on this, I won't be holding out much hope of him being successful.


@HarveyR

Indeed, the tendency seems to have been for employers to go for injunctions to take the momentum out of disputes

And yes, arguably, the real problem is the low threshold with which an injunction can be granted.

The difficulty is that it's not worth going to full trial!

Stuart said...

Iain, this post consists in a worryingly straightforward misunderstanding of what judges are for. And it's not the first time.

Judges are necessarily, and definitionally unaccountable. As well they should be. The law, which they apply, is not; it is shaped by those whom we can vote out. If the judges start departing from the law - which is absolutely clear on this point - then how would we restrain them? There is no agreed form of "common sense', and asking judges to invent it is dangerous territory indeed. As a Conservative, I'd expect you to be alert to that sort of transfer of power.

The "letter/spirit of the law" distinction is totally uninstructive here. What sort of judge could suppose that the "spirit" of a law saying "the result and number of spoilt ballot papers needs to be communicated to all eligible voters" was that in fact that such information didn't need to be communicated?

This is sloppy, knee-jerk stuff, Iain. You're better than this...

Mrs Rigby said...

"The High Court found in favour of BA today because Unite had not told its members that there were eleven spoiled ballot papers when they emailed or texted them the result of the strike ballot."

Rules is rules, as we've heard so often over the past 13 years.

Put your bin two inches out of line, and get a fixed penalty fine. Drop a crisp on the pavement, you're littering. ID cards - nothing to hide, nothing to fear.

So, why did they forget to tell how many ballot papers had been spoiled?

You're wrong Iain, it's a simple rule and not open to misinterpretation - Unite's administration was sloppy, maybe they didn't really want to go on strike.

HarveyR said...

@Nick

"arguably, the real problem is the low threshold with which an injunction can be granted."

The form of words the judge used were that the "balance of convenience" in his view required the granting of an injunction.

But what if BA had not sought an injunction? If the strikes had gone ahead and BA had then gone to trial on the legality of the ballot and won, would the union not be destroyed by a mahoosive claim for damages?

strapworld said...

Iain,

Hold on one second. This union did not follow the legislation on strike ballots last time. You would have considered that someone in that organisation would have had the intelligence to ensure that the law was followed correctly this time.

They did not. The law states that all requirements should be met. They were not. Therefore it was a breach. The Judge was corect. The Union have been proved to be sloppy and quite ridiculous.

Visit the criminal courts on a daily basis and you will find cases where on a technicality of the law defendants walk free.

The law is not an ass. Those that do not follow it closely are the idiots.

Sorry, you cannot be more wrong!

Dan said...

It sounds like it is the law which is an ass rather than the judge, but you still have a position which ends up making the position ridiculous.

If the barrier to legal industrial action is high but deliverable it discourages wildcat strike action and the process is managed between Trade Union and HR professionals.

If the barrier is set so high as to be impossible to legally meet, then strikes have to have Trade Unions dissociating themselves from them but will still happen. However who do you then negotiate with as officially the Trade Union is not organising the action.

In terms of BA, even the initial ballot which was challenged re balloting members who were leaving to join other airlines or take redundancy, is a challenge impossible to meet if the expectation to meet it 100%. i.e. 1 member applies to work for Virgin, has an interview with Virgin, hands in her notice to BA, joins Virgin but retains membership of UNITE. Should she be balloted by Unite, BA have argued both she should be balloted until the day she starts with Virgin AND she should not be from the moment of the application to Virgin as she was going to leave!

I can understan an argument that there should never be strikes in essential monopoly services, but BA is a private company in a market with lots of options if industrial action is legal there needs to be a high but proportionate hurdle.

lance said...

Surely the point is that it goes against all concepts of 'natural justice'. the vote was correct and proper (and the first ruling was insane, even taking into account the "questionable" ballots the vote was massively, overwhelmingly in favour of the strike), but the judge has decided to use a technicality to go against the Union. This is a politically motivated judgement, and calls into question an employees basic human right - the right to withhold labour.

The King of Wrong said...

@lance:
"the right to withhold labour"?

Sure, but nobody's talking about slavery here.

Unite expects its members to receive legal protection far beyond "natural justice" - the 'right' to strike but have your job protected, the 'right' not to have your work done by agency temps, the 'right' not to be dismissed for striking.

Those 'rights' do not exist in nature, and are granted by the law only on sufferance of certain strict conditions of how strikes can be implemented.

If union members think that's harsh, feel free to go on a general strike. Labour can't help you, the Tories won't help you, and the Lib Dems are too young and too middle-class to care about the workers. 90% of the private sector aren't unionised, so you'll get no sympathy there, either.

Ray said...

Lance, how can you say that the decisions are politically motivated?, the first judgement was during the "rule" of the Unite owned Marxist government, at exactly the wrong time for the said government when getting ready for an election. Now we have the coalition who just want rid of the damn strike so they can get on with the mountain of real politics they face.

Mick Turatian said...

Iain, you can't have it both ways.

The other day you were castigating the boss of the electoral commission for failings in the running of the ballot for a new parliament.

Now you're criticising a judge for upholding the procedural requirements of a ballot for a new strike.

Stephen Gillespie said...

Iain - it was an injunction hearing, not a full trial of the merits. Al the judge had to decide was whether BA had a prim facie case in order for him to grant the injunction. It is not he judge who is at fault, it is the law which, as a good Tory, I would have thought you would support given that it is intended to ensure that proper democratic and open procedures are adhered to when a strike ballot is being conducted. As this was not the substantive hearing the judge had no discretion to waive technical discrepancies.

OldSlaughter said...

Like the Union would accept the common sense of the rules. They bend the management over with any technicality they can. They want to play that game and the judge assisted.

Mick Turatian said...

Nick: Hopefully counsel for Unite will argue a human rights violation tomorrow. Given the Court of Appeal's track record on this, I won't be holding out much hope of him being successful.

You're not a lawyer by any chance, are you?

Windsor Tripehound said...

Grand_Inquisitor said...
If I were a BA employee I would be seething ...


Many of my neighbours are BA employees and I can assure you that they are seething - at the prospect of losing their jobs because of the greed of the striking cabin staff

Nick said...

But in this instance, it is the Conservative Government which passed the Act which is to blame ...


And a Labour government had 13 years in which to repeal this act, but for some reason didn't bother. I wonder why?

robonly said...

Has anyone checked what UNITE is wanting to strike about?

From the BBC:
What is at the heart of the dispute?

In November, BA reduced the number of cabin crew on long haul flights from 15 to 14 and introduced a two-year pay freeze from 2010.

The Unite union said this would hit passenger service, as well as the earnings and career prospects of cabin crew.

The airline also proposed new contracts for fresh recruits and newly-promoted staff. These included a single on-board management grade, no seniority, promotion on merit, and pay set at market rate plus 10%.

This would still see new recruits paid significantly less than current staff.

Unite now says it has reached an agreement in principle with the airline on these changes, but the stumbling blocks are now travel concessions and disciplinary action.

When cabin crew last went on strike in March, the airline said that staff who took part in the strike would lose their travel perks permanently, including no longer getting the right to buy heavily discounted tickets.

The union is fighting for the restoration of these perks and has also condemned the airline for disciplinary action being taken against more than 50 union members.

Why is BA making the changes?

BA says that it must restructure and permanently reduce its costs.

It suffered a loss before tax of £342m for the nine months to the end of December 2009, compared with profits of £70m for the same period a year earlier.

The airline's chief executive Willie Walsh said that this had been the "most difficult year in the history of the aviation industry".

"Operational changes at British Airways are absolutely necessary to improve the performance of the business," he said.

Globally, the company says it will have shed 4,900 jobs by March this year.

Willie Walsh agreed to work for nothing in July, in a show of solidarity with the 800 workers who BA say volunteered to do the same.

Chalcedon said...

Judges should have to stand for election

starfish said...

@ Dan

In terms of BA, even the initial ballot which was challenged re balloting members who were leaving to join other airlines or take redundancy, is a challenge impossible to meet if the expectation to meet it 100%. i.e. 1 member applies to work for Virgin, has an interview with Virgin, hands in her notice to BA, joins Virgin but retains membership of UNITE. Should she be balloted by Unite, BA have argued both she should be balloted until the day she starts with Virgin AND she should not be from the moment of the application to Virgin as she was going to leave!


I'm sorry this is another strawman

All the Union has to say on the strike ballot paper is something like:

Only vote if you are an employee of BA and a fully paid up member of Unite on the day the ballot needs to be returned. If you are in the process of leaving BA's employment (ie working notice) then do not vote

There, no legal degree or anything, just commonsense

Seems to be in short supply at Unite

Stuart said...

Joshua Rozenberg has demolished the point that you and Tony Woodley try to make (and if having your two names together doesn't scare you, nothing will!) here:

http://standpointmag.co.uk/node/3034

The one broad idea that is fatal to your argument is one you bring up: parties *need to know that they will be dealt with [equitably]*. That, as a matter of logic, requires the judge to apply the law as it is, not as they think it ought to be on this particular case...

Nick said...

@ WindsorTripehound

Perhaps the fact that the Labour Government didn't repeal these requirements rather belies the claim that they are "in the pockets of" the "powerful Unions".

@ Mick Turatian

I'm a law student, which is even worse!

Unsworth said...

Unite completely cocked up their first attempt, were taken to court and the strike was ruled illegal. They then held another ballot to strike and again have been ruled against.

How much is Simpson paid by his members? Why are they not questioning his competence?

The requirements for publishing ballot results are simple enough. Unite can easily afford to pay for the best legal brains (and for the Labour Party, it seems) yet it cannot even get this right.

Simpson now tries to bullshit his way out by complaining that the judge is a class-warrior, that the law is unjust, that the moon is made of blue cheese. The fact is he's grossly incompetent and is now seeking any way he can to hide that fact.

The first cock-up was a warning that they'd have to play it exactly by the book - and they failed to do so. Now he has only himself to blame - but you can bet what's left of the Bank of England that he'll never accept that.

I give British Airways no more than a 50/50 chance of survival. Yet in the event of a company collapse Simpson and his well-paid colleagues won't be affected in the slightest.

Unite members should take a very close look at their 'leadership'. It's not a pretty sight. These guys are toxic. When will Unite publish its complete and independently audited accounts?

FF said...

The purpose of an injunction is to delay an action that may cause harm until the legality of that action has been established. Otherwise you might find the action is illegal after the damage has already been caused.

Eventually the action will be allowed to go ahead as originally planned or the Union can carry out another ballot. The judge decided that the damage to the union of a delay was less than the damage to the airline of a 20 day strike.

Of course, BA are using the law to disrupt action that is itself disruptive. The Union won't want to go back to its members since it's now got itself into a bit of a mess.

Rush-is-Right said...

The law lays down what the union has to do when it calls a strike ballot.

It didn't do it.

If you are in breach of tax law (as one of hundreds of possible examples) it really doesn't matter whether the breach is technical or trivial. It's a breach and that's it, you loose.

And since it's a Union on the receiving end of this rough justice, I couldn't, on this occasion, be more pleased.

Mick Turatian said...

Nick: I'm a law student, which is even worse!

Don't say that. Your heart is clearly in the right place for you to prosper in your chosen profession.

You said earlier that you hope Unite's lawyers will embark on a course of action which you reckon is likely to prove fruitless.

Well not quite fruitless: invoices will be raised and accounts will be rendered which squares nicely with the deontolgy of your chosen profession.

Good luck!