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.
