Around the Unions

PCSIn what may become a semi-regular feature here are the union related stories that have caught my attention this week.

POA

The shadow Chancellor John Mcdonnell MP has bowed to Northern Irish delegate concerns at the Prison Officers Association conference had withdrawn from his speaking engagement despite being minutes from stage when he made the decision given controversial comments McDonnell had made about the IRA. Steve Gillan, the union’s General Secretary in a statement reported by the Guardian said “John McDonnell asked to be excused from addressing this year’s conference as he wanted to avoid any distractions from the union’s policy making discussions and campaigning plans.”

PCS

Long standing president of the PCS Union Janice Godrich has announced on her she will be seeking election to replace Chris Baugh as Assistant General Secretary of the Union by seeking the nomination of the Left Unity faction and has received the support of Mark Serwotka in that decision. The Socialist Party are suggesting, bizarrely, that this is a  “divisive step that threatens a split on the left.” It’s worth noting that Janice has not declared she is standing against Chris Baugh in the election itself but is seeking to win an election for nomination within the Left Unity faction to go forward as Left Unity’s candidate and I would expect whomever loses that election to honour the result and not stand for AGS in the PCS election proper next year.

Unite

Former Unite General Secretary candidate and dismissed union official Gerard Coyne has lost one of his legal challenges to Len McCluskey’s re-election as General Secretary. The challenge was focussed on whether, in calling an election before his five year term was complete McCluskey broke union rules. Coyne has announced he has appealed the Certification Officer’s decision to the Employment Appeal Tribunal. For my part, having read the judgement I think the decision is the right one but Coyne’s appeal is perhaps stronger than the political commentators such as Swawkbox suggest.

 

Trade Unions Should Learn from Francis Maude’s Attack on PCS Union

Eric Pickles - the first Secretary of State to attempt to remove Check-Off in the DCLG.
Eric Pickles – the first Secretary of State in the UK Government to attempt to remove Check-Off in the DCLG. He failed.

Unions in the Civil Service face a herculean task in needing to get each and every union member to effectively re-join their union following Francis Maude’s pressure to withdraw the ability of union members to pay their subscriptions direct from their salary. The challenge is one other unions can learn from. 

In his article for Civil Service World on the challenges currently faced from the Cabinet Office’s campaign to attack independent trade unionism in the public sector Mark Serwotka describes the challenges to trade unions well.

Serwotka writes:

In the dying days of the last Labour administration, I said if you judged a government by how it behaves as an employer, it was the worst we had ever known. But let there be no doubt, this current crop of ministers – who I hope, come May, will all be following in Francis Maude’s footsteps, packing boxes and saying their goodbyes to staff – have far outdone their predecessors.

Look at their civil service record. Ninety thousand jobs gone; pay and pensions cut, causing living standards to fall by up to 20%; redundancy terms slashed; working conditions rolled back; a hated and discriminatory performance management system; and more politicisation of the senior ranks.

Inseparable from this is the treatment of trade unions. We know how much further the Tories would seek to restrict union rights if they are re-elected. They have already cut facility time – which we also know benefits employees, employers and the wider economy – and, since 2010, they have degraded industrial relations beyond recognition. In the name of austerity, budgets and remits are so tightly controlled that the fiction of delegated bargaining plays out as both comedy and tragedy.

But it is the move against my union’s finances that is the real give-away. After Eric Pickles’s failed and costly attempt in communities and local government in 2013, the Home Office was the first major department to confirm its withdrawal late last year, followed by the Department for Work and Pensions. These hasty removals only make logical sense in the context of the general election. Tory ministers, fearing defeat, want to do as much damage as possible while they still can.

Despite the fact many large UK companies still use check-off because they recognise it is efficient, Maude claims there is nothing untoward about his mission to remove it. And in a frankly bizarre twist of reality, he has cited the fact we are signing up our members to pay by direct debit – a Herculean task to effectively re-recruit at short notice tens of thousands of people – as evidence that we agree with him.

But if there is no political motive, there is no rush. If it is more appropriate for a union to collect its own subscriptions, we could reach an agreement for a smooth transition over time that would not leave us out of pocket. That is, quite obviously, not what is happening.

There is little doubt that the move is intended to target organised labour in the UK Civil Service. When the removal of Check-Off was first attempted by the Department of Communities and Local Government (DCLG) led by the Conservative minister Eric Pickles the rationale was financial. The costs of administering the fund – estimated at £300 per union – were purported to be an unfair burden on UK taxpayer’s. In his attempts to save £300 a year for the UK taxpayer Pickles incurred legal costs – paid for by the UK taxpayer – of £90,000 after PCS successfully sought an injunction against the decision on breach of contract grounds. When consultations were ongoing PCS actually offered to meet the costs of the check-off system from the government so there is no question that the decision was not based on finance, as the Lib Dem Treasury Minister Danny Alexander himself more recently confirmed.

If not finance then what? It is I think simple – without an organised trade union it is all the more easy to push through detrimental changes in terms and conditions. This also explains the government’s eagerness to split the the collective voice of members (e.g., by granting Unison recognition rights), sidelining recognised unions from collective negotiations as proposed in HMRC, and supporting the establishment of staff association such as that in SOCA.  And, by moving to directly to remove check off, and therefore impact on the ability of the union to meets its financial obligations Francis Maude may have hit upon the most effective means of threatening trade unionism in the civil service.

However, as early as 2012 DCLG were urging local authorities to remove check off (emphasis added):

18. Some employees who are trade union members pay their union subscriptions by deduction from their pay at source. The money is then passed direct to the union by their employers. Employers are not required to provide this facility – known as‘check-off’ – or to keep making such deductions indefinitely.Where employers do choose to provide this service, they may also choose to charge the union for the administration involved in doing so.
19. Many councils seek to recover the cost of providing ‘check-off’ facilities by charging trade unions a proportion of the value of the fees collected – for example, from 0.5% to 5%. We consider that charging for collecting trade union subscriptions is one example of sensible savings that can be made in local government. Alternatively, local authorities have complete discretion to terminate such arrangements, and allow trade unions to adopt their own ways of collecting subscriptions (e.g. bank Standing Order or Direct Debit).
In point of fact, as DCLG was to find out, the claim of “complete discretion” for local authorities was misleading. In Hickey and Anor v Secretary of State for Communities and Local Government [2013] All ER (D) 24 the court decisively found the far from having “complete discretion” the decision of the department to withdraw checkoff was in actually in breach of contract.
But that decision has not dissuaded the Conservatives, cheered on by the likes of Conservative Home, from pushing through the removal of check off in departments even though there may be a contractual right to have deductions of union salaries direct from their salaries as there was in Hickey. 
But we are where we are. And as we face the prospect of new administrations in Local Authorities – and, sadly, we can’t rule out that some Labour led councils will not follow suit – there is every prospect that the battles that have beset PCS will be replicated across the UK in local authorities where check off remains. And so, in no particular order, here are some observations for other unions that may face these same challenges in the months ahead; they are all in fact quite straightforward and commonsensical:
  1. Study your contracts of employment – In PCS I think, even with the important win in Hickey we have been too reticent in pursuing breach of contract or JR proceedings. A robust, prompt and publicised legal challenge would have sent a message to other department and give pause for thought for some departments; although such a challenge is still possible it is in some already sense too late – the decisions have now already been made. So the advice is plan a case now – hopefully you won’t need to lodge it but if you do have your evidence lined up and get the case in early. One or two early wins could stop prevent a domino type run of check off withdrawal.
  2. Talk to the members – and non-members. This sounds any obvious one but the decision meant we have had to get out to members where they worked and engage directly with their concerns, essentially we had to recruit them to the union all other again. Do not rely on emails, sadly most members simply to do not read them. And don’t forget the non members too – the campaign to re-sign members to the union was also a boon for recruitment figures as thousands of new PCS members have joined the union.
  3. Don’t screw over your allies – employers have their ploys to undermine the union voice in a workplace and one of these is to play off one union against the other. Don’t fall into the trap and allow yourself to be a tool in someone else’s war. I will post more on this later but while here it was Unison taking the thirty pieces of silver Maude offered them and accepting union recognition (against a fair number of objections from the Unison ranks but which others had been advocating) there is no reason other employers will not use – for example – GMB to undermine Unison etc in other local authorities across the UK. Solidarity should be something unions live and breathe. The tactic was clear, encourage members to ‘union shop’ and so reduce the collective voice of workers as members are faced with the conscious decision to maintain their union membership.
  4. If you recruit new members onto check-off then stop. As the threat to check off became clearer PCS changed its application forms to only accept new applications with a direct debit mandate, even if an applicant’s employer allowed check off. In due course there will be a debate in PCS about whether the NEC (or, more likely, previous NECs) were too slow in making this change, but that is a debate for another day. However, a look at my branch records would reveal that had such a decision been made at the time the Conservatives came to power then the branch sign up rate to direct debit subscriptions would have been around 25% rather than the less than 5% it actually was when a decision to remove check off was announced. I cannot emphasise enough how much of a headstart that 20% would have made made to our organising efforts. So, if you allow new members to join onto check-off stop it now. Quite apart from anything else the industrial logic of having a union’s financial security in the hands of an employer they sometimes find themselves at loggerheads with is negligible at best!

Mark Serwotka Responds on Suspension of PCS Union Elections

Serwotka's response to legitimate questions of union members leaves a lot to be desired.
Serwotka’s response to legitimate questions of union members leaves a lot of questions unanswered.

The decision of the PCS Union’s National Executive Committee to suspend the union’s internal democracy as it relates to elections for the NEC and group committee is understandably a very contentious one; it is also one I disagree with as I have set out before.

One PCS branch, the Bootle HMRC branch (I am sure there have also been many others) wrote to the Union’s General Secretary asking a number of questions about the decision. The letter send can be read here, but the letter begins with a comment criticising the decision on the basis of the lack of consultation and then proceeds to ask two questions:

  1. The branch asked, noting that legislation requires only the NEC election to be conducted by means of a postal ballot why the NEC felt there were no alternatives to reduce the costs of the election in the other ballots (for example, by holding an electronic ballot); and
  2. The branch also asked why the NEC had relied on a supplementary rule of the union to suspend elections that are required by a Principal Rule of the union when these Rules require that in the case of any conflict it shall be the Principal Rule of the Union that shall take precedence.

These are not unreasonable questions.

On 27 February Mark Serwotka responded to the branch, the letter is available to read here. Readers can have of course make their own minds up on Serwotka’s response but to me it fails to really grapple with the questions that were posed to him. No one is going to disagree that the attack is an ideological one, particularly given the PCS’ offer to fund the running costs of check-off, a point reinforced by Danny Alexander’s “no fiscal case” letter to Permanent Secretaries sent from the Treasury.

But Serwotka’s response, in detailing the time line doesn’t answer the question why the NEC felt it had no alternative but to suspend elections with no consultation. He has said clearly that the decision was not a surprise and that this issue was a constant one through the last year; it was surely right for the union to politically campaign to avert the possibility of check off being removed but his answer seems to come down to the following: we couldn’t consult because we didn’t know how many people would switch and so, and I infer this (it is not set out clearly) therefore the union did not know what the financial implications would be for the union until we had gone through the process in one department, namely the Home Office. With that information the union could set a benchmark for what kind of income loss the union could reasonably expect. An accurate assessment was always difficult but, as Serwotka has said elsewhere, this was always a “herculean task” and other union’s faced with such a threat have consistently fared less well than PCS have in retaining over 70% of its membership. Therefore, it seems to me that with the real prospect of a withdrawal of check off there were good reasons for believing the financial pressures on the union would be worse than they actually now are. Consulting members earlier on the financial situation and actions the NEC would consider as a result of this would then seem to have been a more responsible course of action.

There may be a reason why earlier consultation with branches was not practical, even though there was a clear financial threat to the union that was known for a long time (e.g., negotiations behind the scenes in confidence). However, if there was it is not one Serwotka has explained here. I am also conscious that I am criticising Serwotka’s reply but in fact he was for significant periods – quite reasonably due to ill-health – not available to lead the union and so the blame for this failure to consult does not rest with Serwotka himself.

On the question of what other thoughts were given to other forms of elections which would be less costly there is, as far as I can see, no response given.

In respect of the second question what is noticeable is that there is no real attempt to answer the question at all. It would have been quite easy to answer to say this is a complex matter but the union sought legal advice who advised that their proposed actions were lawful and while regrettable felt the NEC had to take the course of action it did. Instead, it failed to engage on the question of the Union Rules at all – that failure to address the point at issue is itself quite telling.

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.