East Midlands Trains Ltd v National Union of Rail, Maritime and Transport Workers

This is an appeal against the judgment of Lewis J dated 31 July 2013 refusing the application of East Midlands Trains Ltd (“EMT”) to grant an injunction against the respondent Union (“RMT”) from committing what EMT alleges to be the tort of inducing or procuring a breach of contract by asking EMT’s senior conductors and train managers to refuse to work at a time when on EMT’s case they are contractually bound to work. The appeal turns on the construction of terms of collective agreements incorporated into contracts of employment. The question is whether EMT was entitled, as a matter of contract, to require on board staff to work for the duration of the engineering works at Nottingham station in different ways from their normal work patterns.

A collective agreement is an agreement or arrangement made between an employer and a trade union. As in this case, it may cover hours of work and allocation of work. It will be legally binding on an employer and trade union if it is in writing and they have agreed that it should be binding on them.

A collective agreement, like other agreements, is to be interpreted in the light of the factual background against which it was made. In this case, that background may conveniently be identified at the same time as explaining how the dispute between the parties has arisen.

The judge’s succinct judgment sets out the basic facts:

“2.

…East Midlands Trains is a company providing the rail services between cities in the East Midlands and London and also providing certain local services within the East Midlands area. East Midlands Trains Limited was formed from the old Midlands mainline company, which runs the intercity services to London and part of Central Trains, which runs the local services.

3.

East Midlands Trains have contracts of employment with their senior conductors and train managers and with other staff employed to work on their trains. They have roster arrangements in place determining the days and hours when the staff are to work. Those roster arrangements describe the starting and finishing hours of each shift.

4.

Major planned engineering works are being undertaken in and around Nottingham. They began on 20^th July 2013 and they will continue until 25^th August 2013. As a result, trains cannot go into and out of Nottingham Railway Station. Alternative arrangements have been made. However, that has caused East Midlands Trains to want to bring about changes in the roster arrangements for its senior conductors, train managers and other staff employed to work on trains excluding the drivers. The changes are, in effect, a change in the start and finish times of a shift, but there is no increase in the length of a shift.

5.

A dispute has arisen about whether or not East Midlands Trains can require the on-train staff to work rosters with these changes, involving as they do, different starting times for some of the shifts. The Union opposed the making of those changes without agreement.

6.

The Union held a ballot asking the relevant staff if they were prepared to take industrial action short of a strike. Of the 533 Union members entitled to vote, 288 did vote, 245 did not vote. Of the 288 employees who did cast a vote, 190 employees said they were in favour of taking part in industrial action short of a strike. Accordingly, on 12^th July 2013 the General Secretary of the Union wrote to East Midlands Trains informing them that from 00.01 hours on Saturday, 20^th July 2013 until further notice, members would be instructed: (1) not to work any overtime; (2) not to work any rest days; (3) not to perform any additional duties outside their job description in terms of conditions of employment; (4) when rostered on spare turns only to work turns or duties within the parameters laid down in their terms and conditions of employment; (5) only to work agreed rostered hours and rostered turns of duty only. As will become clear, it is points (4) and (5) of that instruction which has proved contentious.”

I add the following:

EMT informs us:

The parties agree that the relevant staff have contracts which incorporate the terms of collective agreements with RMT dealing with employment matters. The staff have slightly different contracts according to whether they were employed by EMT’s predecessor, Central Trains, or were first employed by EMT.

The contracts of the on board staff previously employed by Central Trains contain the following clauses or (so far as material) clauses to the following effect:

“6.

The days of the week on which you may be required to work, and the number of working hours within each working day, may vary or be changed periodically, depending on the particular requirements of your post…

15.

Your contract of employment is subject to such terms and conditions as may be settled from time to time in relation to employees of Central Trains. In the event of any conflict between this contract document and any trade union agreements, this document will prevail.”

The terms of employment of new staff employed for the first time by EMT have clauses to the same effect save that they do not state which document is to prevail if there is a conflict with the terms of any collective agreement.

Two collective agreements have been made:

The CRI is composed of three parts, the third being a rostering agreement.

These two collective agreements use the expressions “diagram”, “link” and “roster”. Mr John Hendy QC, appearing, with Ms Ijeoma Omambala for RMT, helpfully summarized the evidence of Mr Graham Cross on behalf of RMT as to the meaning of these concepts as follows:

The key provisions of the collective agreements are as follows:

Senior conductors who become “spare” are subject to movement + or – 2.5 hours on the time for the turn of duty to which they are allocated as a result of becoming spare. They are expected to work the full term of the turn to which they are rostered.

Building on documents provided to the judge and used by him in his judgment, I shall next illustrate how the links, diagrams and rosters change pre- and post- Engineering Blockade.

There are more substantial changes in the roster for Senior Conductors in other diagrams. The reason given to us by EMT for this was that where the length of a person’s turn of duty becomes too long as a result of having to take a taxi, the work has to be re-allocated in a different way. Thus it will not always be possible to retain the pre-Engineering Blockade diagrams simply substituting the journey between Nottingham station and East Midlands Parkway with a taxi.

It can thus be seen that it is the diagram (not the link) which is cancelled. (In this paragraph, I am using the term “cancelled” for convenience and without prejudging the arguments on this appeal). As a diagram particularises the work that each Senior Conductor is to do, the cancellation of a diagram is just the other side of the coin to cancelling the relevant part of the turn of duty. The cancelled element is part of rostered work, to which clause 2.1.5 of the CRI applies, and part of the “turn of duty” to which clause 2.5.3 of the Mainline CA applies.

The parties are not in dispute as to the principles of law which the court should apply in this case.

As already indicated, a collective agreement is to be interpreted in the light of its factual context in accordance with the well-known principles set out by Lord Hoffmann in Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896 at 912.

The guidance which Sir Thomas Bingham MR gave in Adams v British Airways PLC [1996] IRLR 574 remains valid even though it was given before the ICS case. While emphasising that the court has to find the fair meaning in the light of the factual background against which the agreement was made, he advocates a common sense approach and considers it relevant to ask what the parties would reasonably be expected to have intended the agreement, read as whole, to mean:

“21.

The court is not concerned to investigate the subjective intentions of the parties to an argument (which may not have coincided anyway). Its task is to elicit the parties' objective intentions from the language which they used. The starting point is that the parties meant what they said and said what they meant. But an agreement is not made in a vacuum and should not be construed as if it had been. Just as the true meaning and effect of a mediaeval charter may be heavily dependent on understanding the historical, geographical, social and legal background known to the parties at the time, so must a more modern instrument be construed in its factual setting as known to the parties at the time. Where the meaning of an agreement is clear beyond argument, the factual setting will have little or no bearing on construction; but to construe an agreement in its factual setting is a proper, because a common-sense, approach to construction, and it is not necessary to find an agreement ambiguous before following it.

22.

On the facts here, it was a collective agreement which was incorporated into the contracts of the individual plaintiffs. A collective agreement has special characteristics, being made between an employer or employers' organisation on one side and a trade union or trade unions representative of employees on the other, usually following a negotiation. Thus it represents an industrial bargain, and probably represents a compromise between the conflicting aims of the parties, or 'sides' as in this context they are revealingly called. But despite these special characteristics, a collective agreement must be construed like any other, giving a fair meaning to the words used in the factual context (known to the parties) which gave rise to the agreement.

23.

A literal reading of the language of the plaintiffs' contracts yields the construction for which the plaintiffs contended and which the judge upheld. If every pilot on becoming a BA employee is a 'new entrant', and that rule permits of no exceptions in any circumstances, it must follow as the night the day that all the B Cal pilots were 'new entrants'. They should all therefore have gone to the bottom of the BA seniority list; since they all joined on 1 April 1988 they should have been added in order of age, not rank or service; and the seniority of those born on the same day should have been determined by ballot.

24.

Read literally, the agreement can be held to apply even on a merger of large-scale airline operations. But there is nothing in the language of the agreement to suggest that the parties intended it to apply in such an event. There is, equally, nothing in the language of the agreement to suggest that they did not. It may be that the parties to the agreement did not direct their minds to the possibility of a merger such as this. It is permissible to ask whether the parties can reasonably be supposed to have intended the agreement to apply in such an event.”

Ali v Christian Salvesen [1996] ICR 25 makes it clear that we should bear in mind that sometimes a collective agreement will be silent on an issue.

“The circumstances which are in my view crucial to the present case are that this was a collective agreement negotiated across a broad front for a substantial labour force. It represented a carefully negotiated compromise between two potentially conflicting objectives – the desire on the one hand of the employees to have an assured rate of weekly pay spread over a long period to which they would be entitled regardless of hours actually worked; and the desire on the other hand of the employers to avoid the high cost of paying overtime rates for work done at periods of peak demand. It is in the nature of such an agreement that it should be concise and clear – so as to be readily understood by all who are concerned to operate it. One would expect the parties to such an agreement to set their face against any attempt to legislate for every possible contingency. Should there be any topic left uncovered by an agreement of that kind, the natural inference, in my judgment, is not that there has been an omission so obvious as to require judicial correction, but rather that the topic was omitted advisedly from the terms of the agreement on the ground that it was seen as too controversial or too complicated to justify any variation of the main terms of the agreement to take account of it.” (per Waite LJ in at page 31A-D)

The short point is that the flexibility provisions in the collective agreements are triggered only if EMT can cancel the diagrams of the senior conductors and train managers without their agreement.

The judge held that the changes did not constitute a cancellation. EMT was seeking to revise the start times of the shifts. One of the features of the collective agreement was that start times should be agreed between the Union and the employer. The employer was simply revising or amending the roster for the purposes of the relevant contractual provisions. It was not a cancellation of one roster and adoption of another. That was reinforced by the comparison between the original and the replacement roster. They were virtually identical: the journeys were the same; the train number was the same. The only difference was that trains left from a different station and, to accommodate that, on board staff had to start a few minutes earlier. In substance this was only a revision of starting times and not a cancellation. Therefore, the conditions of the collective rostering agreement did not apply and the employer required the on board staff' agreement. EMT did not have a contractual right to change the rosters.

Mr Hendy seeks to uphold the judge’s reasoning and so I shall start with his submissions.

Mr Hendy submits that clauses 2.1.5(2) of the CIA and clause 2.5.3 of the Mainline CA apply only where

As to 1), Mr Hendy submits that the links have to be negotiated (see clause 1 of the rostering agreement). The links cannot change without agreement. Therefore EMT cannot change the diagram and then insist on on board staff working to the changed diagram. What EMT is doing is trying to bypass the need for agreement to the link by substituting one diagram for another under the guise of cancellation. If this were permissible, each part of the link would be vulnerable to any change desired by management whenever it wanted to seek to vary the links without agreement.

Mr Hendy further submits that the procedures for resolving agreements have not been exhausted. There was a failure to agree at local level which could have been referred to the functional council. But it could also have gone for third party conciliation.

As to 2), Mr Hendy submits that the cancellation clauses can only be used if, for example, there is a derailment or other similar unforeseen event, not planned engineering works. They, therefore, apply only to cancellation of the turns of a few individuals outside the normal processes of negotiating rosters.

As to 3), Mr Hendy submits that rostered work was not “cancelled” on the facts of this case. This is effectively the judge’s revision-not cancellation point. Senior conductors and train managers are simply asked to work on the same train at roughly the same time. The trains which formerly started at Nottingham station now start at East Midlands Parkway. The trains bound for St Pancras would have gone through that station in any event so they are simply running short. The bulk of the journey is still done. The on board staff are not prevented from doing their work and that is what is required before the cancellation clauses apply. That means the rostered work is not duly cancelled. Therefore the provisions for reallocation of spare staff and flexibility provisions do not come into operation.

EMT’s case is that (1) the Engineering Blockade makes work allocations for senior conductors and train managers unworkable during the period of the engineering work at Nottingham station and (2) it is permitted to make only those changes to work patterns necessitated by the Engineering Blockade.

Mr Robin Allen QC, with Mr Jason Galbraith-Marten, for EMT, contends that EMT is entitled to cancel a roster if the cancellation is for a non-arbitrary reason. That non-arbitrary reason is that the pre- Engineering Blockade diagrams have become “unworkable”. If EMT cannot cancel them, it cannot fulfill its obligations to operate to the expectations of the public and within the statutory framework in which franchises are granted (including service level conditions) and train operators are regulated. Mr Allen submits that the Engineering Blockade necessitates changes in rosters. Mr Allen submits that the link is not immutable. The employer can override the procedure for the functional council in emergencies.

Mr Allen submits that the position of EMT is consistent with the concession made by RMT:

“It has always been understood by both the RMT and yourselves that clause 2.1 .5 and 2.5.3 are only able to be implemented in very specific circumstances. For example, they would be used when work has had to be cancelled as a result of an emergency such as a derailment, or maintenance work being required as a result of some unforeseen event.” (letter dated 25 July 2013 from Mr Bob Crow, General Secretary of RMT to Clare Burles, Human Resources Director, EMT)

I should explain that Mr Crow made this point in the course of explaining RMT’s position that the cancellation provision in the collective agreement had never been used “in the context where engineering work is taking place which has been planned for a considerable length of time.” In the opinion of RMT, both parties know that the clauses would only take effect in very specific circumstances.

Mr Allen submits that the judge’s approach was to say that the diagrams were not cancelled but merely revised. This was the wrong question:

Mr Allen submits that EMT would negotiate changes if it could and that EMT does not wish to undermine the collective agreements. However, EMT has not been able to negotiate changes. Mr Allen does not shrink from the point that EMT’s interpretation means that the employer has a trump card but, he submits, the employer has this trump card in order to comply with the franchise and to meet the expectations of the travelling public. Someone has to be in charge of the operation of the train services. On his submission, it makes no sense that EMT cannot cancel rostered work if it would give rise to chaos.

Mr Allen submits (and Mr Hendy did not challenge) that this is not a situation in which the employer has acted in bad faith or breach of contract, when other considerations might apply.

There is no procedure for resolving the deadlock. There is a procedure agreement with escalation clauses but no agreement as to binding arbitration. No process for resolving the matter by the procedures set out in the collective agreement could have been achieved before 23 May when RMT issued its press release announcing that the ballot would be held. There was no prospect of the procedures being concluded before the closure of Nottingham station for the planned engineering works.

Mr Allen submits that the procedures were not in any event apt for incorporation into the contract of employment. It is simply an industrial mechanism.

Mr Allen submits that contracts of employment import terms of the collective agreement to the extent that they are not inconsistent. The contract of employment cannot have imported terms which would lead to chaos and which would be inconsistent with the duty to cooperate. The construction put on these terms has had the consequence that trains have to be delayed.

Did RMT advocate strike action?

There is a sub-issue as to whether what RMT advocated was strike action or action short of a strike. This is important because on EMT’s case RMT do not have a mandate to start a strike as a result of the ballot. However, Mr Hendy accepts that it does not have to be resolved on this application.

RMT’s case is that strike action must involve some refusal to do work. That was not the case here. The work was on unagreed terms.

Connex issue

In case this matter goes further, Mr Hendy reserves the right to argue hereafter that the grant of relief against RMT would be incompatible with a free-standing right to strike guaranteed by Article 11 of the European Convention on Human Rights. There is binding authority which Mr Hendy accepts prevents this court from deciding this point in his favour: Metrobus Ltd v Unite [2009] IRLR 851 and see RMT v Serco Ltd [2011] IRLR 399.

We should only decide those issues which need to be decided. Mr Allen helpfully pinpointed the areas of dispute as the first two of the following four issues:

In my judgment, to resolve those first two issues, we need to ask what the collective agreements, read as a whole against the relevant background, would reasonably be expected to mean.

Cancellation of work is clearly contemplated by both collective agreements: see CRI, clause 2.1.5 (2) and Mainline CA, clause 2.5.3. However this could clearly not be done for purposes or in circumstances excluded expressly or by implication by other terms of the collective agreements. I would accept that it could not be used to circumvent an express agreement, for example, to agree links, when that obligation was in point. However, subject to that point, it must have some sensible (or “common sense”) content.

I do not consider that the court should be deflected from reaching the fair meaning of the collective agreements by the fact that the word “cancel” has not been given any definition. It is a broad term and this is one of the situations where the collective agreements no doubt left the matter undefined so that the parties could deal with situations as they arose: see per Waite LJ above in Ali v Christian Salevesen, above. No doubt on railways, as in other fields of life, the unexpected happens.

It is not necessary on this application to provide a comprehensive description of the circumstances in which cancellation may occur, but, in contradistinction to the judge, I do not consider that either party could reasonably be expected to have thought that the decision whether to cancel a turn of duty was going to be a “desktop” exercise, by which I mean an exercise to be carried out by reference to a quantitative comparison of the amount of revisions to the diagrams before and after the change. Nor do I consider that it has to be a situation in which the on board staff were physically prevented from completing the whole of the original train journey as this would narrow the circumstances in which cancellation would apply, a matter which the parties have not expressly sought to do. As Sir Thomas Bingham said, the starting point is that the parties meant what they said and said what they meant. It seems to me, having regard to the factual setting described above, in particular in paragraph 5 of this judgment, much more likely that both parties would intend cancellation to occur if the diagrams could not be completed for some reason affecting the assigned work which left no practical alternative. The custom or practice described by Mr Bob Crow in his letter of 25 July 2013, quoted above, confirms this approach. Moreover, the circumstances that have arisen in this case can similarly be described as very specific circumstances, a phrase used by Mr Crow in that letter.

It follows that I am also satisfied that EMT exercised its power of cancellation (issue (2) above).

I, therefore, accept that the parties are likely to have intended the power of cancellation to apply when the turns of duty were unworkable. On this basis it matters not whether there was only one signal failure involving a small number of trains, or a large event, such as some new health and safety requirement introduced without notice, which makes it necessary to temporarily take out of commission the majority of the rolling stock, and which affects a much larger number of services. There would be a large area of uncertainty if there had to be a quantitative or a qualitative judgment as to the impact of the emergency, as Mr Crow’s letter suggests.

That is not the end of the matter because it is an important part of the factual setting, confirmed by the practice of the diagrams themselves, that certainty of working patterns is important in this enterprise. I do not, therefore, under-estimate the requirement that links should be agreed. That is not only good industrial relations practice but what the collective agreements provide. However, that requirement cannot be used to negate the power to cancel the diagrams set out in it in situations of unworkability, because the power of cancellation is also provided for in those agreements. On board staff are protected against diminution in their negotiating position by the constraints applying to EMT.

These constraints are to be found in the collective agreement and the general law. There are limits on the movement in time at which the new turn of duty may start and limits to its length. In addition, as both parties to the collective agreement would be well aware, the employer has its duty of co-operation owed by every employer to its employees. This is an important protection.

The duty of co-operation has a gap-filling role. This is illustrated in Adams v British Airways, above. The issue there was whether British Airways could bring pilots, “inherited” from British Caledonian Airways (“B Cal”) when it took that company over, in at an appropriate level of seniority. This court held that the normal contractual requirements about new appointees coming in at the first level of seniority did not apply in this situation. However, this did not mean that British Airways could bring in B Cal pilots on some irrational basis because of the duty of co-operation:

“That [the court’s conclusion on interpretation of the terms of employment] does not mean that in this merger situation, for which the collective agreement made no special provision, BA was free to make any agreement it chose with the B Cal pilots, no matter how disadvantageous to BA's existing pilots. It owed its existing pilots a duty to act fairly and reasonably and with proper regard for the mutual trust and confidence which should be inherent in the relationship of employer and employee. It would not, for example, have been open to BA, whatever commercial advantage there might have been, to put the B Cal pilots, irrespective of their seniority as compared with BA pilots, at the top of the seniority list. It is not, however, argued for the plaintiffs that if (contrary to their contention) it was permissible for BA to create a combined seniority list this was done in any unfair or unreasonable manner.” (per Sir Thomas Bingham MR at [30]

In my judgment, this duty is the answer to the points made by Mr Hendy about the failure to use the procedures in the collective agreements for dispute resolution. EMT would be bound to use those mechanisms if failure to do so would result in a breach of its duty to co-operate but Mr Hendy did not go so far as to suggest this. Nor did he in fact suggest that the procedures were incorporated into the terms of employment. They may be insufficiently certain for this purpose. I leave that question open.

Accordingly, in my judgment, in the light of the factual setting, the power of cancellation in the collective agreements, read as a whole, must reasonably be understood to mean that if, without breaching its obligation of co-operation to its employees, EMT took the view that existing work patterns had become unworkable in the light of the Engineering Blockade, it was able to cancel turns of duty and rostered work so far as it considered it necessary to do so. That decision must logically be a function of management and not of the on board staff.

Exactly the same situation might arise if the employer was forced by some new health and safety requirement to stop running the trains in its usual way.

In other words, in my judgment, the collective agreements allow EMT a limited legal space to dispense with the agreement of its on board staff to cancelling diagrams.

As this case involves a trade dispute, section 221(2) of the Trade Union Labour Relations (Consolidation) Act 1992 (“TULCRA”) requires the court, if it proposes to grant an injunction, to have regard to the likelihood of the defendant succeeding at the trial of the action in establishing any matter which would afford a defence under section 219 of TULCRA. Mr Hendy in effect accepts that section 221(2) does not prevent the grant of an injunction in this case if he fails on the issue of the interpretation of the collective agreements, subject to his reservation regarding the “Connex” point (see paragraph 42 above).

I would, therefore, allow the appeal and grant an injunction. If my Lords agree with my conclusions, we shall have to hear submissions on the form of the court’s order.

I agree.

I also agree.