PCS Elections: Round Up

UPDATE – 07 Feb

Since the last post the following articles have been posted:

If I’ve missed any posts please let me know in the comments.


So it is about three weeks since the NEC’s decision to cancel PCS elections in 2015. It seems an opportune moment to post some links on the reaction to the decision to update this earlier round up.

The decision was announced in the run up to Christmas, in a posting on the main union website in the not especially transparent title “Government steps up political attack on PCS”.

To date the only solidly supportive source is Left Unity’s Left Unity on attacks on PCS and the National Elections. The article itself add little to the official PCS article, citing the need to save resources (the c. £590,000 annual group and national elections are said to cost the union) and focus resources on countering the direct debit challenge.

The central thrust of the of article is that in the context of the harsh political climate the union means the decision was a ‘difficult but necessary’ one but, somewhat ingeniously suggesting that opposition to the NEC decision is ‘right wing’:

Left Unity is absolutely clear that the decision was the only one that could have been taken in the circumstances. The highest possible standards that have been set by the Democracy Alliance national executive has its roots in many decades of struggle to secure the greatest possible democracy for our union. On merger PCS had two-yearly elections and conferences. It was Left Unity, including all the members of the current PCS leadership active at the time, that fought against the right wing to secure annual elections and conferences. Securing national elections was not just won by votes at conference alone. Mark Serwotka and Janice Godrich went to exceptional personal risk in fighting for the right in the High Court, including risking the loss of their own homes.

PCS members will understand and support this decision when it is honestly explained – so too will PCS activists. Right wing opponents of the national executive will attack the decision. Their history in resisting the democratisation of our union and its predecessors will expose their criticism for what it is – shameless hypocrisy.

I have to say how a decision to resist a decision to move away from an ostensibly ‘left’ position is now is a ‘right wing’ attack is a mystery and seems to be a particularly unrefined form of doublespeak. If David Cameron were to come out and oppose all NHS privatisation whilst his opponents were seeking to outsource it I would rejoice, that he’d supported a socialist policy not label it as a ‘right wing’ reaction. As it is, however, although there are complaints from right-wingers with the aforementioned Howie Fuller being a case in point it looks like the majority of the complaints against the decision are from the left (although characterised as ‘non-factional’).

The Alliance for Workers Liberty’s (AWL) article of 30 December PCS leadership suspend elections criticizes PCS for a lack of transparency, considering it is unlikely that the financial report of ADC 2014 had already highlighted the risk to the Union and said it was factored into the considerations:

Thus members and Conference were assured that the continuing decline in membership had been taken account of.

However, just in case a branch or conference delegate might nevertheless have worried about the future post 2014 the report – signed off by Chris Baugh (National Treasurer), Kevin McHugh (Deputy President) and Stella Dennis (Director of Finance) – stated,

“There is no doubt that the union faces serious challenges going forward. The scale of the government attacks is having a significant impact on our income which [is] largely derived from members subscriptions.” So delegates were under no illusion as to the pressures on the union but the Annual report continued, “We believe the further measures set out in this report will ensure we continue to consolidate our financial base whilst protecting the organising, bargaining and campaigning activities that PCS members expect.”

There was no hint that just seven/eight months later, far from continuing to consolidate the financial base, PCS would be confronted with an apparent existential threat.

A similar view is set out  in Howie’s Corner (knowing how much Howie loves the far-left type I am sure that will delight him).

The Way I See Things ties the news in with the apparent hope of certain segments of the PCS leadership to keep alight the hope of a takeover of PCS by Unite and, a simultaneous takeover of the Unite Left by Left Unity.

It’s Spirit Cries in the Wilderness offers an anarcho-syndicalist view of the decision.

Paul Williams and Marianne Owens, two of three NEC members at the meeting who voted against the proposal write for the Socialist Worker in Undermining democracy won’t help union beat the Tories’ attacks. Williams and Owens write:

We have to cut costs, but this is a three-year budget. That should mean asking members and reps for their views how money could be saved.

But above all else we believe that in a democratic union it must be the right of members to decide when the national executive gets elected.

It cannot be for the executive to decide. We believe that this decision should have been taken by conference. At that point we will also know the financial situation we face.

So we voted for the union’s headquarters to be sold and for the financial decisions to be put to conference.

We did not vote for a budget that included proposals to suspend elections or for the suspension of elections themselves.

PFLCPSA devotes its most recent edition to the NEC decision.

The Revenue and Customs Bootle branch, together with the DWP East London Branch established a campaign which thus far has been joined by the DfT London and South East branch uniting around the following statement:

The decision by the emergency NEC in late December 2014 to suspend NEC and group elections was wrong.

  • We will work together in a campaign to seek to get that decision overturned and for NEC and group elections to be held at the usual time. If that does not happen then they must be held as soon as possible.
  • We will agree motions or a motion for the ADC that will achieve elections as soon as possible after the conference.
  • We will seek to get as many branches as possible to agree this statement.
  • We will use social media (be it a blog, Facebook page etc.) to gather support for our campaign in the union and in the wider labour movement
  • We accept and respect that each branch will have differing views on who to support in elections. The sole purpose of this campaign is for NEC and GEC elections to be held at the usual time or if that does not happen then they must be held as soon as possible.

The IL faction have been especially vociferous in opposing the decision in the following postings:

Many of the Independent Left’s criticisms are valid but it must be said the suggestion that the reason for the decision is fear of an IL election victory against the LU is not credible at all. You need only look at recent IL election results, together with their inability to field a left GS candidate to challenge Mark Serwotka to see through that suggestion.

The Democracy Deferred website remains the most important of the responses and includes a copy of the NEC briefing which was given NEC members, or rather, those NEC members able to attend shortly before the meeting.

Your Voice describes the decision as defeatist saying “Facing off the attacks on our union from this government mean not only standing our ground but advancing forward. If we take a single step backwards, in terms of democracy or organisation, then that is a concession too many to our foes”

Jon Rogers, a Unison NEC member characterises PCS’ decision as “An Early Xmas present for the Tories” and comments that “The General Secretary himself is not above the Rule Book.” This is a post upon which (in the comments) the author is described as passive aggressive by PCS President Janice Godrich.

Socialist Resistance comments that cancelling “elections will mean that the opponents of the current leadership will be prevented from standing and putting forward their arguments in elections and leave the existing leadership in place.”

Penultimately, there is the three posts I have penned Why trade union elections are expensive, Cancelling Elections and the PCS Union’s suspension of elections.

Last, and most certainly least, the R&C staff association and darlings of HMRC management the Revenue and Customs Trade Union have used the NEC decision for a bit of politicking; strangely despite being ‘bored’ by PCS they need to talk about them at length. I have no problem criticizing the decision or actively campaigning against the decision and the leadership – that is entirely legitimate. It was perfectly possible, it this were a point of principle, for the RCTUers to campaign and stand for election and defeat the policies it opposed through electoral means in the R&C group and PCS. And if PCS dissatisfaction is as widespread in HMRC as it suggests then it would take only a little organising to win those elections since they, allegedly, stand for the silent majority. That they have chosen to ‘take their ball and go home’ speaks volumes on the political principles and respect for democracy of RCTU ‘leaders’. If you want to change the union because it has gone off track then get involved, get elected, and change things. If you choose not to do that then all opinions expressed should, rightfully, be viewed with suspicion.

Cancelling Elections

I recently wrote a legal summary of the PCS Union NEC’s decision to cancel elections in 2015. I said in that post I would add some personal comments on why I don’t think a legal challenge to the High Court or Certification Officer is advisable.

As I have said previously I believe there is a reasonable case that the NEC’s decision is unlawful and could be challenged by legal means; as indeed Mark Serwotka and Janice Godrich did in 2002 to overturn a previous NEC’s decision to sidestep the union’s internal democracy. In 2002 I have no question that they were right to do so.

So what is different 12 years later when a different NEC makes a decision that overrides the explicit will of conference that there shall be annual elections of the NEC and GECs (recall it was Left Unity that campaigned for a Principle Rule change that elections “shall be held annually”). My answer boils down to two responses: trust and finances.

In 2002 Barry Reamsbbottom sought to disregard the outcome of an election by remaining in his General Secretary Post after the NEC sought to interpret the Union’s constitution in such a way to allow them to disregard the clear intent of the Union’s rules. Some argue that this is precisely what is being done here, even down to the late notice of an emergency NEC.

The issues are undoubtedly similar but there is a difference – this NEC have committed themselves to be bound by the decision of Annual Delegates Conference 2015 to ratify the decision of NEC. Therefore, even though implemented wrongly there is a decision to cast the suspension under some form of approval process to which members can contribute to. More personally, while mistakes have been made I also have more of a level trust in the leaders now than was the case 12 years ago. The decisions that have been made were I think made with good intentions in the main – although it has to be said I am not sure the same can be said about how the matter came to be put to the NEC (in an emergency NEC 2 weeks after a scheduled NEC and with no consultation with branches).

Second, there is the union’s finances. I went into last year’s ADC undecided on the question of PCS transfer to Unite but, if anything, was edging towards the ‘yes’ camp. Central was the question of PCS’ finances. Despite protestations of an ‘industrial logic’ to the merger this logic remained aloof, here were two unions that organise in substantially different sectors. There were rumours of a PCS financial crisis and a pensions deficit running into the tens of millions. The view of my branch – which was more anti-merger than my own – was to oppose the merger unless the financial well-being off the Union required it. As it was, the financial report far from highlighting the financial pressures the union were under declared the financial position of the union was a relatively healthy one, even with the challenge of Check-Off factored into these calculations.

I think it is fair to say that there was considerable doubt among delegates that the union’s finances were as healthy as suggested but, since the financial report did not declare that a transfer was necessary for the financial security of PCS, I was mandated to vote against the NEC proposal to transfer to Unite, as did representatives for 109,326 union members.

Fast forward to December 2014 and check off had been abolished in the Home Office and notice given in the union’s largest sectors, HMRC and DWP. This was not a surprise and had been widely expected but it seems the crisis forced the hand of the union to declare the removal ‘an emergency’. In short the good financial health pretense was shown to be at best highly optimistic pedaled, I suspect, to facilitate a merger without showing the union to be in a position of weakness. That was a strategy that backfired.

Given the doubts so many had already had about the Union’s finances this finally brought us to a point where the union was being candid with its members about its financial position. In short, I believe it when they say the PCS, relaying the NEC decision, say decisions taken were to secure the ongoing financial viability of the Union, although, the question of whether that was a legitimate or necessary decision is, of course, a different issue.

Which brings me to my second reason: in the context of a financial crisis I think now is not the time for members who are rightly concerned for the union’s democratic well-being to pursue a legal challenge that will result in additional costs to the union when there is an alternative means by which the decision can be challenged. In 2002 a legal challenge was the only option open to challenge the decision, in 2015 the NEC has given the opportunity for the decision to be overturned by Conference. True, this will not be in time to meet constitutional requirements but it will still allow elections in the relatively soon period thereafter.

I currently sit on a Group Executive Committee with my term ending in May 2015 and intended to stand again. I am therefore ‘a beneficiary’ of the NEC’s decision; but I was given no notice or input into that decision. I was elected by members to serve for one year and yet by an executive decision into which member’s have had no input have had my term extended. I am personally undecided what that means for me when my term expires this May and whether I will continue to serve beyond the timescale I was elected to serve for. Even if National elections were impossible owing to events (and national ballots are more difficult logistically and financially because of legal requirements) I do not understand why this could not have been openly debated in a scheduled NEC, branch’s consulted, alternative and cheaper methods of election organised for Group committees and a rules change on bi-annual elections proposed to ADC 2014 or ADC 2015 (if necessary i would have supported these).

As it is an executive has exempted itself from democratic accountability to its membership preferring to cast its fortunes to an activist base at conference.

And so, I will not be challenging the decision legally and I hope others choose not to do so as well but I will certainly be challenging members to think carefully about how branches should respond and will be proposing my branch votes against the NEC ratification decision.The reason is simple: our constitution tells us Conference instructs the NEC on union policy and the NEC implement it, the reciprocal is not true.

City Link Redundancies: An Unfair Dismissal?

The RMT Union has today reported on discussions it held today with the administrators of City Link, which on Christmas Day announced the redundancy of over 2,500 jobs with workers losing their jobs on New Years Eve, The union reports that at the meeting the union was told that:

* the company were working with insolvency advisors since November without telling the staff or their union.
* the company was technically declared insolvent on the 22nd December but deliberately withheld that information.  A plot to hold the announcement to Boxing Day was only thwarted by the RMT acting on information from a whistle blower.
* more than 2000 staff will be made redundant on New Years eve. City Link and it’s financial backers will have no liability for redundancy payments and the staff will have to apply to the government scheme. The remaining staff will be retained short term to wind down the company.
* individual sub contractors, owed thousands of pounds, are unlikely to see any of their money.
* there is no one in the frame to take over the company as a going concern but there may be a limited number of jobs available at other companies.
A dismissal by reason of redundancy is a potentially fair reason for dismissal. However, assuming the summary is accurate this raises the prospect that the redundant employees, or rather, those redundant workers with two or more years service may have a unfair dismissal claim. There appear to be two grounds upon which such a claim could be made.
i) Failure to inform
In Williams v Compair Maxam Ltd [1982] ICR 156 the EAT set out five guidelines for a large company should follow to ensure a ‘fair’ dismissal:
In law therefore the question we have to decide is whether a reasonable tribunal could have reached the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted. It is accordingly necessary to try to set down in very general terms what a properly instructed industrial tribunal would know to be the principles which, in current industrial practice, a reasonable employer would be expected to adopt. This is not a matter on which the chairman of this appeal tribunal feels that he can contribute much, since it depends on what industrial practices are currently accepted as being normal and proper. The two lay members of this appeal tribunal hold the view that it would be impossible to lay down detailed procedures which all reasonable employers would follow in all circumstances: the fair conduct of dismissals for redundancy must depend on the circumstances of each case. But in their experience, there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:

1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, _f necessary, find alternative employment in the undertaking or elsewhere.

2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

2. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the work force and to satisfy them that the selection has been made fairly and not on the basis of personal whim.

As the tribunal indicated such an approach is not a ‘checklist’ which leads to a finding of unfair dismissal if not followed, as later affirmed by the EAT in A Simpson and Son (Motors) v Reid [1983] IRLR 401.

Still, according to the Daily Record the Venture capitalist and UKIP supporter Jon Moulton who ran City Link had admitted to the Sunday Mail that he had not informed the employees as soon as the decision to dismiss them had been made. Moulton is reported to have told them “The intent was to announce on Boxing Day. The appointment could ­conveniently be made on Christmas Eve”. In other words, the decision had been made on a working day (Christmas Eve) but deferred to a non working day. That would arguably come within the advise that a reasonable employer would give as “much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.”

ii) Lack of Consultation

According to the RMT release City Link “were working with insolvency advisors since November without telling the staff or their union.” Given Moulton’s comments on the Union “irritating him to death” together with other attributed views the idea seems credible.

Although a breach of section 188 of the Trade Union and Labour Relations Act 1992 will not necessarily render a dismissal unfair a failure to consult will normally render a dismissal unfair (Mugford v Midland Bank plc [1997] UKEAT 760_96_2301). Section 188 requires that “Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment … the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.

Section 188 was enacted to implement EU Directive 98/59 which makes cleared the consultation is required at that time the redundancies are ‘contemplated’ rather than the ‘proposed’ set out in the 1992 Act. It seems to me that it is likely that at redundancies were contemplated at least as early as the November meetings with insolvency advisers and, most likely, significantly before then. The employer failed to do that. In so doing it it would appear that City Link are likely to have failed to give employees the opportunity to express their views which in Rowell v Hubbard Group Services [1995] UKEAT 44_94_1201 was found to have rendered a dismissal unfair, a case relied upon in subsequent claims.

In order to defend such a claim the Respondent would need to show that consultation would have been useless (Duffy v Yeomans and Partners Ltd [1994] CA). That is clearly a fact sensitive question but given the likelihood that voluntary redundancies could have been agreed, other redundancy mitigation strategies suggested, or even a government intervention or mutualisation it is difficult to see how consultation would have been ‘useless’ even if, as seems likely, the prospects of an agreement were not high.

And, of course, any claimant may want to consider adding named individuals as additional respondents in any claim. I understand RMT are a recognised union in City Link and, I am sure, will be also be pursuing a protective award of 90 days pay per union member in this case as well as well as advising on pursuing claims against an insolvent employer (of all the union’s RMT is the one for whom I have the utmost respect regarding its legal work).

Whatever happens, it is a terrible situation and what makes it worse is that while hundreds of former employees will face enormous difficulties making ends meet the likes of Jon Moulton will soon brush this off and go on to makes many more hundreds of thousands of personal wealth whilst leaving a trail of destruction behind him.

 

 

 

 

The PCS Union’s Suspension of Elections: A Preliminary View

The decision of the PCS National Executive Committee ‘to suspend’ elections in 2015 has, rightly, proved a controversial one which has generated a lot of debate. The campaign website PCS Democracy Deferred has made a forceful case that the NEC decision is in breach of the union Rules and, further, that members may find a complaint to the Certification Officer is an appropriate remedy for this breach (a further action which cannot be taken in tandem with a complaint to the Certification Officer would be for a member to submit a complaint to the High Court).

In this post I want to examine this issue from a legal point of view based on my own research (for the record I am not legally trained). For those wanting to fast forward to the end my view is that the NEC has probably acted in breach of the union’s rules but that that a challenge to the Certification may result in a finding that the rules were breached but, in the circumstances, such a complaint is not advisable if the aim is for the union member to enforce the union’s rules.

Breach of the Rules

Principle Rule 9 of the Rules sets out that “The NEC shall be elected annually.” It is a relatively clear rule, once a year the NEC shall be elected by the members although there is some ambiguity as to the meaning of the word “annually”. The last NEC election was determined on 8 May 2014. It follows therefore that the one year point from that date would expire in May 2015. If “annually” is to be interpreted as once every 365 days then on 9 May 2015 (i.e. before the date of the next ADC) the union’s rules will have been breached. But it is by no means certain that annually does mean once every 365 days; suppose an election were to be planned now for December 2015 would this – since it is still in 2015 – still constitute an annual election? In such a circumstance it would only be in January 2016 (by which time the ADC may well have endorsed a suspension or even a rules change that the NEC would be in breach of PR9.

In Lee v Showmen’s Guild of Great Britain [1952] 2 QB 329, which was heard in the Court of Appeal, Lord Denning, made clear that “a written set of rules to which all the members subscribe” is constitutive of the contract between union members and the union and, that this “is just as much subject to the jurisdiction of these courts as any other contract.” In short, the final arbiter for the meaning of a union rule are the courts.

It seems likely though that a court would find that the former scenario is the correct construction of the annual requirement in PR9.

First, as Gwyneth Pitt has set out “courts have leaned towards a construction of the rules that benefits the member.” [1]

Second, it is the practice that has been a feature of the union’s practice since the Democracy Alliance assumed control following the decision of the High Court in Godrich and Anor v Public and Commercial Services Union and Anor [2002] EWHC 1642 (Ch). There is a yearly Delegates Conference and, in the two weeks prior to that conference the NEC election results are published. Although it is true that the primary source for determining a union’s rules can be found in the unions rule book, it is not the only source. In Heatons Transport Ltd v TGWU [1972] 3 WLR 431, in a case that follows the same trajectory seen in contract law, the custom and practice of a union is a matter from which the courts may identify unwritten rules of the union.

In AB v CD [2001] IRLR 808 (Ch) the court was required to determine the rules that should operate in a union election – which was conducted on a single transferable vote basis – when two candidates received the same number of votes. There had been a practice that in such circumstances the candidate with the greatest number of votes in the first round would be elected even though there was no term specifying this in the union’s rule book (the RMT). The court was unable to imply the contract term on the basis of practice as it did not feel the membership were aware of this custom – – although the same contract term was implied for separate reasons (necessity) following the contract law case of Liverpool CC v Irwin (1977). In this case however the election results are published to all members and, as such, it is likely such an interpretation of annual would be followed.

It remains the case however that at present PR9 has not been breached but if an election is not held before May 2015 it is likely it will be (and if not by January 2016 it certainly will have). Section 108A(1) of the Trade Union and Labour Relations Act 1992 however gives a union member the right to complain to the Certification Officer not only to those who allege there has been a rule breach but where the union not only to those who allege there has been a “threatened breach” of the Rules where the breach pertains to “the balloting of members on any issue other than industrial action” (section 108A(2)(c)).

The NEC briefing paper, NEC 35/1/14, pointedly set out that the decision to suspend elections would “amount to a breach” of Principle Rule 9 and supplementary rules 5.5 and 7.2. It does however rely on what was to me an unknown supplementary rule 11.2 which is the union equivalent of an enabling act. SR 11.2 states: “Where the NEC considers that by reason of industrial action, force majeure or other cause beyond the Union’s control, or in case of emergency, any time limit specified in the Union’s Rules cannot be fulfilled, the NEC may notwithstanding any provisions in the Union’s Rules change such times as it considers necessary.” Three things can be said on this question however.

First, as the PCS Democracy Deferred highlight PR14 stipulates that “In the case of conflict between a principal rule and any other rule of the Union, the principal rule shall prevail.”

Second, even if the ‘state of exception’ provision in SR 11.2 is operative it is doubtful the check off status would really constitute a ‘force majeure’ (which is the express provision of SR 11.2 the NEC paper relied upon). The Annual Delegates Conference in 2014 were very clear that there was an imminent attack on PCS finances just around the corner through a removal of the Check-Off facility; it was perfectly possible for the NEC to move a motion at that conference calling for an amendment to PR9 and the relevant SRs (that they did not do so may be because of the construction of PR13 which is addressed below). The suggestion that the removal of check off represented an unexpected challenge to PCS finances would, if true, represent an atrocious lack of foresight and mismanagement. As it is, however, the challenge was clearly not unexpected and, as such, is difficult to see how the situation is such that it can reasonably be interpreted as a force majeure.

Third, I am far from confident notwithstanding the two points above that the Certification Officer would seek to go behind the Rules – even if it could (which is far from clear. It seems likely that PCS would be able to plead historic mistakes and that the decisions were taken in good faith which leads to the two remaining potential breaches which – if force majeure is not to apply – would seem to me to render the decision of the December NEC to amount to an actual rather than merely prospective breach of the union rules which are likely come within the purview of section 108A(2)(d) of the 1992 Act (namely, “the constitution or proceedings of any executive committee or of any decision-making meeting”).

PR 2 sets out that

Delegate Conference shall be the principal policy-making body of the Union, and shall determine the policies of the Union, subject to the following: (a) Between Delegate Conferences, the NEC shall have discretion to determine the policy of the Union on any matter, consistent with the policies established by Delegate Conference or by the overriding authority of a membership ballot. (b) On any matter which the NEC considers to be an issue of major policy, the NEC may hold a membership ballot under these Principal Rules, and the result of such a ballot shall where appropriate prevail over any decision taken by any body or unit of the Union.

In addition, PR 8 sets out that

The management and control of the Union, and the handling of its whole affairs, shall be vested in the National Executive Committee (“NEC”).  The NEC shall conduct its affairs in accordance with: (a) the Rules of the Union; and (b) the policies determined by Delegate Conference or by membership ballot.

Both of these Principal Rules address one central issue: the policy of the union is set by the union’s annual delegate conference and any action of the NEC, under the union’s Principal Rules, must be consistent with conference policy save in one exception: that the NEC ballot all members in the period between policy setting conferences; this was – and is – an option before the NEC but one what was not utilised. It follows then that having failed (for understandable reasons, it has to be said) to ballot members on a policy change between conference the NEC was bound by the extant union policy. Put simply, the NEC did not have the authority (SR11.2 notwithstanding) to deviate from conference policy and, therefore, the decision to suspend elections was not one it had the power to make.

In summary, on balance I think a strong case can be made that the NEC in suspending elections in 2015 made a decision that was in breach of PR2 and PR8 and a prospective breach of PR9.

Foss and Harbottle

At common law – meaning the law of precedent rather than of Parliament – there is, despite the apparent breach of union rules reason to question whether a complaint of a prospective breach of Union Rules would get a hearing.

In 1843 the case of Foss v Harbottle [1843] 67 ER 189 was determined. This established the judicial rule, which was applied in a trade union context in Cotter v NUS [1929] 2 Ch 58, that where a breach of rules is threatened a would-be claimant is unable to bring a claim in non-serious breaches. This is important since any complainant would most likely be looking not solely to argue that there had been a breach but would be looking for an equitable remedy; in other words, that the union was breaching in breach of the Rules and the union is ordered to comply with these (an injunction) on the grounds that the threatened breach would amount to a serious breach and should be stopped before it happens.

A threatened breach of a Principle Rule would strike most readers as serious but the difficulty here is that ‘serious’ is defined a rule that is capable of ratification by a majority vote of members (i.e. a simple majority). It does not here even matter whether any attempt at ratification takes place, all that is required is that the decision is capable of such ratification (or endorsement as the PCS briefing puts it). One would think that a ratification of the NEC decision to suspend elections, amounting as it does to an effective change in a principle rule 9 of the union would require a two thirds majority of conference votes. It doesn’t.

Principle Rule 13 allows a principle rule to be amended in two circumstances:

The Principal Rules shall be amended, deleted or added to only where any such amendment, deletion or addition has been approved by (a) not less than two-thirds of the votes entitled to be cast by delegates present at a Delegate Conference, or (b) not less than two-thirds of those present and voting at a meeting of the NEC; and, in either case, where it has thereafter been approved by a simple majority of those members voting in a membership ballot. Any such ballot shall be conducted in accordance with these Principal Rules. Where the NEC proposes to hold a membership ballot under this rule, it shall give sufficient notice thereof to allow prior consultation with Branches.

The second scenario is relevant here, a Principle Rule may be amended if two thirds of the NEC vote for it in an Executive Meeting and the ADC endorses the decision in a majority vote.

We know that more than two-thirds of the NEC who attended the meeting voted in favour of the recommendation which means that in order to effect a change in PR 9 all that is required from conference is a simple majority. This will no doubt be a matter of concern for union members at large but it also means that the rules breach at issue will not amount to a serious breach under the Foss and Harbottle precedent as it allows an NEC to implement fundamental changes to PCS’ rule book without the need for a special (i.e. two thirds majority) and is likely to be why the NEC communications refer to an endorsement of the NEC decision.

By contrast, had PR13 said what I suspect most PCS activists think it says – namely that a rule change must be endorsed by a two thirds majority of conference delegates – this would amount to a special majority which would distinguish the case from the Foss and Harbottle rule (per Edwards v Halliwell [1950] 2 All ER 1064) and so greatly increase the likelihood that a PCS member could successfully sue for a prospective breach of PR9.

So would the Foss and Harbottle rule apply?

All of the cases cited above were heard prior to the passing of the Employment Relations Act 1999. This is relevant because it was the ERA 1999 that amended the 1992 Act to allow a union member to make a complaint over a breach of the Rules – or a prospective breach of the union’s rule – to the Certification Officer.

Complaint to the Certification Officer/High Court

The introduction of section 108A to the 1992 Act explicitly allowed a member to make a complaint that so long as the complaint concerns a relevant matter – which is the case here- then the complaint can be based on a prospective rule breach since this is given in the plain meaning of the statutory language: “A person who claims that there has been a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in subsection (2) may apply to the Certification Officer for a declaration to that effect, subject to subsections (3) to (7).” Since this a statutory rather than common law it is unlikely there is a basis for applying the Foss and Harbottle rule here which all predate the enactment of this provision and supersede the common law.[2]

The Certification Officer may, if a claimant is successful, issue an enforcement order to “take such steps to remedy the breach, or withdraw the threat of a breach” and so, it does have the power to order equitable remedy. A look through the record of the Certification Officer’s decisions shows an organisation that is reluctant to utilise that power, although the recent Decision in Hicks v Unite the Union [2014] D/32-39/14-15 is a recent (relatively minor) counter example.

In sum, I think on the facts of the case there is a quite a strong case that the NEC will be found to have been in breach of PR 2 and 8 and, most importantly, in prospective breach of PR9. If a member chooses to sue the union for such a breach I do not in any way blame them – it is an extremely important issue and in the absence of elections this is a valid means to bring the executive to account for its decision and, if the complaint is pursued to the Certification Officer rather than the High Court, there is no need for the process to be long-winded or expensive to either the complaining member(s) or the Union itself (which I would hope every member would accept is a important factor to consider) . I hope to explain in a later post, however, why I will not be among the member(s) who submit such a case, if such a challenge is made.

Time Limit issues

Perhaps the major challenge to challenging the view is procedural rather than relating to the merits, and it is the main reason I think (personal factors notwithstanding) a complaint is not advisable.

Like an Employment Tribunal there are time limits in which a complaint to the Certification Officer must be lodged, these are set out in section 108A(6) of the 1992 Act. A complaint must be made within six months of the breach or threatened breach, or when a formal complaint is lodged six months from the date of the conclusion or (if earlier) one year from the date of their initiation (therefore, unlike an ET putting in a complaint through internal processes extends the time limits in which a complaint may be lodged).

I am assuming here that the motive in bringing about a claim is not just to seek a declaration that the Union that the NEC acted in breach of the Union’s rules even if this is determined after the fact but to seek an actual order enforcing the union rules be carried out by this NEC before the conclusion of the ‘annual’ election period.

The Certification Officer is obligated to resolve cases as soon as possible, usually within six months of the claim. So, given the NEC meeting appears to have taken place on 19 December 2014 the expiry date for a claim would be 18 June 2015 which is itself after the date of ADC where the NEC’s decision will either be endorsed or rejected by delegates on a (likely) simple majority vote.

It follows then that in order to obtain any prospect of the Certification Officer making an enforcement order before ADC a claim should be submitted without delay, and even then it is eminently possible/probable that the complaint would not be resolved before the ADC where the ADC will itself have made a decision to either endorse or NEC decision or reject it. Applying this to the issue in hand if the ADC endorse the decision then while there is a reasonable prospect that the Certification Officer will find a breach of the Union’s Rules they will at the point of determination have been validly changed / suspended (per PR13) and so the likelihood of an enforcement order being issued seems very remote. Alternatively, if the ADC rejects the decision then the question of the how the Certification Officer becomes moot, the NEC (assuming they keep their word) will be obligated to conduct elections forthwith, even though by that time it will already be too late to meet the extant union rules.

To complicate the matter further even though there appears to be a right under section 108A(1) to lodge a complaint without pursuing a complaint first section 108B(1) sets out that the “The Certification Officer may refuse to accept an application under section 108A unless he is satisfied that the applicant has taken all reasonable steps to resolve the claim by the use of any internal complaints procedure of the union.” There appears to be very little record of decisions where the reasonableness of not pursuing a matter internally are considered by the Certification Officer. It seems likely that to ensure that a complaint is heard a member must pursue the matter internally, in this case through the PCS complaints process. There is no question this would take a absolute minimum two months to run its course, and in all likelihood much longer which would make the likelihood of a decision prior to the ADC next to impossible.

As such, it seems to me that notwithstanding the merits of the argument if the aim is to enforce the union’s rules and compel the union to run the 2015 ‘annual’ election there is little utility in a member pursuing the matter before the Certification Officer as it seems all but impossible that such a complaint, even if successful on all points, would be able to bring about an effective remedy for a breach of a trade union’s rules by allowing the 2015 elections to go ahead on the timetable the rules themselves dictate should be followed. That that is the case highlights a major gap in labour law but it is one trade unionists are accustomed to; after all, how many times have we seen a member on a route towards dismissal that we know to be unfair but find ourselves powerless without collective action to injunct that looming dismissal but instead been forced to pursue an unfair dismissal claim that very rarely puts the wrong done to the member right (by overturning the dismissal itself).

Notes:

[1] Gwyneth Pitt, Employment Law, Sweet & Maxwell, 2011,

[2] Interestingly, in Wise & Anor v USDAW [1996] ICR 691 HC in a case with more than a passing resemblance to the NEC’s decision here, the High Court declined to apply the Foss and Harbottle rule, finding that all members have a right to enforce adherence to the union’s rule book (which are contractual) which may suggest that even if pursued in a High Court this rule is unlikely to be an impediment.