Sample Undergraduate First Class Law Essay with Footnotes
Here is a Sample Undergraduate First Class Law Essay with Footnotes written for a Labour Law module at a Russell Group University. Please do not copy or plagiarise from this essay. This essay is meant to provide you with guidance. Please do not rely on the law, cases or references as they may be out of date. Make sure to do your own research.
The changes brought about by the ERA04 have brought about three obligations on trade unions.
The first and most complex concern was the ‘notice’ requirements under TULRCA sections 226A and 234A which were inserted into legislation in 1993. The law on action ballots was only a single part of a tripartite package concerned to promote ‘Democracy in Trade Unions’.[1] Section 62 of TULRCA has given trade union members a right to seek a court order restraining the union from coercing them to take part in industrial action where no ballot was held. The TURERA had brought about a change of focus: the legislation was no longer viewed in the traditional sense underpinning democratic voting of trade union members. The law now stipulated that employers be provided with ‘notices’. The law on the two main ‘notice’ requirements in section 226A and 234A (to hold a ballot and of industrial action) have undergone several phases but with no substantial change in policy considerations. Simpson refers to these phases as ‘the ‘Blackpool’ phase, the ‘make plans’ phase and now the ‘lists and figures’ phase’.[2] The ‘Blackpool’ phase took place between 1993 until ERA 1999 (came effect in 2000). This phase marked a requirement for unions to provide the employer with the names of members who were balloted or called to take industrial actions following the CA decision in Blackpool & the Fylde College v NATFHE[3]. The changes brought about by the ERA 1999 requires unions to provide information ‘in the union’s possession as would help the employer to make plans and bring information to the attention of ‘the affected employees’’.[4] The extent of this provision was very far reaching and accroding to Robert Walker LJ in London Underground Ltd v RMT[5]could have more onerous reqirements than the pre-1999 law. This could mean that unions would be faced with an uncertain obligation that would almost be impossible to comply with. The third phase of ‘notices’ saw the encatment of ss 22 and 25 of ERA04 in the hope of simplifying law. The information contained in the notice is now in ‘lists and figures’. The former related to categories of workers and the latter related to the total number of workers concerned, the number in each category and the number at each workplace.[6]
Industrial action for which trade union bears the entire liability is accorded statutory immunity only if it has a majority of members voting in the ballot. Sections 22A and 234A produced a major shift in the law. In 1993 ‘notice’ requirement was stipulated by thee TURERA and was aimed to promote ‘Democracy in Trade Unions’.[7] Section 62 of TULRCA has given trade union members a right to seek a court order restraining the union from coercing them to take part in industrial action where no ballot was held. The TURERA had brought about a change of focus: the legislation was no longer viewed in the traditional sense underpinning democratic voting of trade union members but was more concerned with protecting employers from strike action. It is now worth examining the changes brought about since the ERA99 to ERA04 to see how this shift occurred.
Up until the decision in Blackpool & the Fylde College v NATFHE[8] unions were required to provide the employer with the names of members who were to be balloted or called to take industrial action. The ERA99 substituted this requirement with the provision of ‘such information in the union’s possession as would help the employer to make plans and bring information to the attention of the ‘affected employees’.[9] It is worth referring to paragraph 14 of the 2000 Code[10] to express the government’s intention behind the changes to the ‘notice’ requirements which is to ‘enable [the employer] to warn his customers of the possibility of disruption so that they can make alternative arrangements’.[11] Reliance on the code ‘could deprive the threat of industrial action of most or all of its coercive force’[12] especially in the light of the fact that most trade unions derive their bargaining power from the ability to make credible threat of industrial action. In London Underground Ltd v RMT[13]Robert Walker LJ explained that producing ‘information in the union’s possession’ is more onerous than simply supplying all their members’ names and meant that union could be faced with an obligation without defined boundaries which is practically impossible. Sections 22 and 25 of the ERA04 were enacted to simplify the law by introducing the ‘lists and fugures’ requirement in the ‘notice’ to hold a ballot on industrial action and ‘notice’ of industrial action. The ‘lists’ requirement is based on categories of workers and their workplace and the ‘figures’ requirement mainly concerns the total number of workers concerned, number in each category and the number at each workplace.[14] To overcome the uncertainty in the union’s
The law now stipulated that employers be provided with ‘notices’.The requirements governing the conduct of the ballot are extremely complex, technical and ambiguous ‘thus leaving unions vulnerable to potential challenge in the courts on several counts’.[15] ERA04 amended s.227(1) restricting entitlement to vote to those who would be induced to participate in industrial action ‘by the union’, thereby strengthening the unions ability to protect its members interests when organising a ballot. Following the judgment in P v NASUWT[16], the insertion of s.232B clarified that failure to ballot insignificant numbers of those who are entitled to vote will not result in loss of immunity. Trade unions are also required to provide employers with ‘notices’ before and after the ballot under s226A and notice of industrial action under s234A. The pre-ballot notice must contain detailed information regarding the employees of the employer concerned whom the union believes will be entitled to vote in the ballot.[17] The notice must list the categories of employee to which the employee concerned belong and their workplace, total number of employees, number in each category listed, and the number who work at each place listed.[18] The union then has a statutory obligation to explain how those figures were arrived at.[19] The ‘lists and figures’ supplied must be accurate as is reasonably practicable in the light of the information in the possession of the union at the time when it complies with the obligation to ensure it is received by relevant employers.[20] The Code of Practice on Industrial Action Ballots and Notice to Employers 2005[21] at paragraph 16 concedes that it is not possible for Union records to be wholly accurate and maintains that where ‘data are known to be incomplete or to contain other inaccuracies, it is a desirable practice for unions to describe in the notices the main deficiencies’ and ‘the main assumptions used when making estimates’.[22] The government conceded that this goes beyond the obligations imposed by legislation but its inclusion in the Code is justified under s203(1)(6) TULRCA which enables codes issued by the Secretary of State ‘to promote desirable practices’.[23] Simpson maintains that the effect of these provisions as ‘underlin[ing] the function of the law on industrial action ballots in assisting employers to limit the impact of any industrial action’.[24] The 2005 Code has added to the body of ‘soft law’ with which trade unions should make an attempt to comply in the form of advice on how they should provide ‘lists and figures’ now required under ss 226A and 234A notices. However, the code has ‘failed to provide assistance in resolution of difficulties’[25] that have emerged from case law.
Drawing to case law I will now illustrate the complexity of the current balloting rules that renders compliance almost impossible,[26] and technical infringements can undermine action that is otherwise lawful, providing a springboard for injunctions, or rendering the union financially liable and the employee unprotected from dismissal. In the British Airways plc v Unite the Union[27] the key issue was that UNITE erroneously included in the ballot notification and erroneously balloted several hundred members who it knew would no longer be employed by BA at the time of the strike. This mainly applied to those who took voluntary redundancy. UNITE relied on the statutory defences that the information provided in the ballot and strike notices was as accurate as was reasonably practicable[28]; and that any failure in relation to the ballot itself was accidental and had no effect on the result of the ballot.[29] Interestingly Mr Hendy QC invites Mrs Justice Cox to adopt a purposive construction of the statutory provisions by referring to London Underground Limited v NURMT
The Labour government, acknowledging the law on ballots as ‘unnecessarily complex and rigid’,[30] enacted ERA99 to allow minor accidental failures in entitlement to vote and supply of ballot papers to be disregarded, and to remove the requirement established in case law[31] for identification of individual members. However, judgments[32] under ERA99 suggested clarification wasn’t achieved and further reform was enacted via ERA04, amending s.226A to clarify the information to be provided to the employer in ballots and notices.
Mr Hendy QC, appearing for UNITE, submits that any breach of the ballot requirement in section 227 was accidental and that any failure to comply was on a scale which was unlikely to affect the result of the ballot and should therefore be disregarded. He invites me to adopt a purposive construction to these statutory provisions, relying on the words of Millett LJ in London Underground Limited v NURMT [1995] IRLR 636 at para 37, where he said:
“Parliament's object in introducing the democratic requirement of a secret ballot is not to make life more difficult for trade unions by putting further obstacles in their way before they can call for industrial action with impunity, but to ensure that such action should have the genuine support of the members who are called upon to take part. The requirement has not been imposed for the protection of the employer or the public, but for the protection of the union's own members…..”
The crucial question in this case is what the evidence shows that the union knew or understood to be the case, and whether the evidence before me supports the union’s submission that it can rely on (a) the “reasonable practicability” defences, in relation to the ballot notice and the strike notice; and (b) on the defence of reasonable belief as to who would be induced to take part in industrial action, contained in section 227, and the specific defence accorded in respect of that section in section 232B (accidental failures).
“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.”
(a) downloading the union’s database of members, and checking the details against the information available in the BA system and spreadsheets, so as to try to rule out anyone on the check-off who was no longer a member of the union. It appears that at least some names were removed in this way.
(b) giving advice on a hotline to those members who raised questions about who should vote, and informing them that if they were VR leavers they should not vote.
Secondly, Mr Hendy submits that that there was no clarity or certainty as to when, or if, any particular individual would in fact leave on voluntary redundancy. Those who were going were known to BA, but not to the union.
The dates on which people were leaving also tended to change over time.
Thirdly, Mr Hendy submits that there was intransigence on the part of BA in disclosing to the union the names of those who were to be made redundant. BA knew who was to be made redundant and when they would be leaving, but the union did not possess this information. It was therefore reasonable, he submits, for the union to believe that all the members to be balloted would be induced to take industrial action, unless and until some of them were made redundant.
JUDGE AND WHAT UNION COULD HAVE DONE
I fail to see why it was not practicable or reasonable for this union to enquire of its membership whether they were leaving in November and December. Sensible steps had been taken in October, as can be seen from the 7 October posting referred to above. For reasons which are unclear, no similar exercise was conducted for November and December, even when the union was aware, on its own case, that a substantial number of its members would then be leaving and would not, therefore, be entitled to vote.
union’s concerns as to the accuracy of its figures, there is no document before me which shows that the union ever issued clear instructions to its membership, informing them that if they were leaving in November and December they were not entitled to vote and must not vote in the ballot.
Mr Hendy places reliance on the fact that BA has pointed to no detriment caused to the airline, from what he describes as merely “technical failures” by the union to comply with the legislation.
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.
alive as I am to the inordinate complexity of the statutory procedures, to the need to give effect to the words of Millett LJ in the London Underground case, and, as Mr Hendy put it, to the clearly expressed wish of the union, after Metrobus, to “get it right”. On analysis, however, the evidence upon which he relies in this case does not avail him.
steps taken by the union to ensure that members not entitled to vote did not in fact vote.
Mr Hand submitted that information was possessed by the union, within the meaning of s.226A (3A) and s.234A (5A) only if it satisfied three tests. First, it must be actual information, as opposed to information which the union could obtain by making further enquiries. Second, it must be held either on a computer disk or in a document, and moreover in substantially the form in which the statutory provisions required it to be given, so as to exclude any information which could be produced only by undertaking the task of collating numerous files.
But there was not any significant change in the legislative policy or in the purpose for which information was to be given to the employer. The change was a change of means, not of objective, in order to meet the concerns of those members of a union who objected to being included in a list of names. It was not intended to make it easier for a union to prepare notices under s.226A and s.234A, and indeed it is clear from the facts of this case that it may make the task more onerous. But that is not as surprising as Mr Hand has contended. It is the inevitable consequence of expressly enacting that a union is not bound to provide a list of names.
The usefulness of the information is seriously reduced if an employer is simply told ‘5000 employees, all grades, all workplaces’ without the additional information which could be conveyed by a grid or spreadsheet, with different categories (as appropriate) listed at the side and different workplaces listed at the top, and the appropriate numbers filled in.
A series of cases will illustrate the proposition that technical breaches can nullify otherwise lawful action thus setting the optimum conditions for injunctions or employee dismissal. It is important to remember that the underlying purpose of legislation on ballots was to promote internal union democracy.[33] The requirement to provide details and notice to the employer however reduces the effectiveness of the right to strike as the employer can anticipate the strike and set contingency plans into motion. The Labour Government enacted ERA99 following their statement that law on ballots was ‘unnecessarily complex and rigid’.[34] This enactment allowed some leeway to minor accidental failures in entitlement to the right to vote and supply of ballot papers, and effectively removed the requirement set in case law[35] for interpreting individual members. Later cases such as London Underground following the ERA99 changes suggested that clarity was not yet achieved and acted as a steppingstone to further changes through the ERA04 which amended s. 226A so as to clarify the kind of information that was supposed to be provided to employer in ballots and notices. According to Simpson the need to provide details information through ‘lists and figures’ to employers thus reduces the effectiveness of the right to strike.[36] In P v NASUWT[37], s.232B allowed insignificant errors in details to be provided to employers to pass without the loss of immunity. Despite the amendments, ballot and notice requirements remain burdensome and very difficult to get right. The requirement to provide notice to employers of the ballot as well as industrial action within a seven day period reduces the effectiveness of the right to strike even further as employers could use this seven day period before strike action to dissuade employees from engaging in a strike and draw attention to their rights under ss. 64-65.
[1] Cmnd 8778, 1983).
[2] B Simpson ‘Strike Ballots and the Law: Round Six’ ILJ 2005, 34(4) 333.
[3] [1994] ICR 648.
[4] Ss 226A(2)(c) and 234A(3)(a).
[5] [2001] ICR 647, 661.
[6] Ss 226A(2)(c), (2A)-(2I) and 234A(s)(a), (3A)-(3F).
[7] Cmnd 8778, 1983).
[8] [1994] ICR 648.
[9] TULRCA 1992, ss 226A(2)(c), 234A(3)(a).
[10] Code of Practice on Industrial Action Ballots and Notice to Employees 2000.
[11] Code of Practice on Industrial Action Ballots and Notice to Employees 2000, para 14.
[12] B.Simpson, ‘Code of Practice on Industrial Action Ballots and Notice to Employers 2000’, (2001) 30 Industrial Law Journal 194. 197.
[13] [2001] ICR 647, 661.
[14] TULRCA 1992, (ss 226A(2)(c), (2A)-(2I); 234(5)(a), (3A)-(3F).
[15] S. Deakin & G. Morris, Labour Law (5th ed., Hart Publishing, Oxford, 2009) 929.
[16]see n26
[17] TULRCA 1992, s226A(2H).
[18] TULRCA 1992, s226(2)(c), (2A), (2B).
[19] TULRCA 1992, s226(2)(c)(i).
[20] TULRCA 1992, s226(2D).
[21] Hereafter referred to as the code.
[22] Code of Practice on Industrial Action Ballots and Notice to Employers – PL962 (Rev.2) 2005
[23] Government Response, June 2005, para 212.
[24] B Simpson ‘Strike Ballots and the Law: Round Six’ ILJ 2005, 34(4) 333.
[25] B Simpson ‘Strike Ballots and the Law: Round Six’ ILJ 2005, 34(4) 337.
[26]J.Hendy & G.Gall ‘British TU Rights Today and the TU Freedom Bill’ p267 See n10 for source text
[27] [2009] EWHC 3541 (QB)
[28] TULRCA 1992, ss226A (2D), 234(3D)
[29] TULRCA 1992, s232B.
[30]Fairness at Work, Cm3968 (1998) para 4.26
[31]Blackpool & Fylde College v NATFHE [1994] IRLR 227 CA: ballot stating ‘all our members in your institution’ was insufficiently precise.
[32]London Underground Ltd v NURMTW [2001] IRLR 228 CA: ballot notice stating ‘all categories at all workplaces, with the overall number of members at ‘approximately 4398’ deemed not to meet the information requirement..BT plc v CWU [2003] IRLR 58 was similarly decided.
[33]Trade Union Act 1984
[34]Fairness at Work, Cm3968 (1998) para 4.26
[35]Blackpool & Fylde College v NATFHE [1994] IRLR 227 CA: ballot stating ‘all our members in your institution’ was insufficiently precise.
[36]B Simpson ‘Strike Ballots and the Law: Round Six’ ILJ 2005, 34(4) 333
[37]see n26
