Ultraframe (UK) Ltd., R (on the application of) v GMB & Ors

The provisions of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 as amended (“the 1992 Act”) have been described as being of “byzantine complexity”: see R(Kwik-Fit (GB) Ltd v Central Arbitration Committee [2002] EWCA Civ. 512; [2002] ICR 1212 at p1221. The central issue in this case raises a question of interpretation of those provisions.

The point arises in this way. Two trade unions sought recognition to be entitled to conduct collective bargaining on behalf of a group of workers employed by Ultraframe (UK) Limited (“the company”). In due course, and after certain preliminary decisions of a panel of the Central Arbitration Committee (“CAC”), a secret postal ballot was held. The result of that ballot, which closed on the 28^th April 2004, revealed that a majority of those voting supported such recognition. But it is also a requirement of the provisions of Schedule A1 that there has to be approval of 40% of the relevant employees’ bargain unit. The result of the ballot, as notified to the CAC by the qualified independent person (“QIP”) having conduct of the ballot, was that the necessary percentage was by 4 votes not achieved. The unions concerned were swift to raise complaints, saying that a number of employees had not received ballot papers. The matter was referred to the panel of the CAC, and a hearing was held on the 11^th June 2004.

By determination dated the 29^th June 2004 the panel decided that it had jurisdiction to entertain the unions’ application that the ballot should be re-run. It proceeded to review the evidence. It found that a number of employees had not received ballot papers and concluded that five had not been given a sufficient opportunity to vote; it further found that those five employees would have voted in favour of recognition; and in the result ordered that the ballot should be re-run. The company was and is aggrieved by this determination and challenges it by Claim Form issued on the 15^th July 2004. A stay of the CAC’s direction that the ballot be re-run was in due course ordered by the Administrative Court pending the substantive hearing. (I add that I was told that the delay in this matter coming on for hearing was an agreed accommodation for the availability of counsel).

The key question is: did the CAC have jurisdiction (on a proper interpretation of Schedule A1 to the 1992 Act) to entertain the dispute and to order the ballot to be re-run? It is the position of the company (as it was at the hearing of 11^th June) that the CAC had no such jurisdiction. It is further said by the company that there was a want of natural justice at the hearing, in that the grounds on which the CAC decided that it had the necessary jurisdiction were not raised at the hearing with the company’s legal representatives. The company also says that the decision of the CAC to order a re-run of the ballot was in any event irrational.

At the hearing before me the company was represented by Ms Helen Mountfield (the company’s written opening arguments having been prepared jointly by Mr Andrew Hochhauser QC and Ms Mountfield). The CAC was represented by Mr Thomas Linden. The CAC had understandably been concerned to defend itself against the allegation that there had been a want of natural justice: and it wrote a letter dated 13^th July 2004 (before the proceedings were started) to explain its position. As to the claim itself its position in the Acknowledgement of Service was broadly to the effect that it was neutral. Mr Linden in the event has, on the jurisdictional issue, in fact entirely properly (and helpfully) conducted a vigorous and sustained argument in favour of the proposition that the CAC did have the requisite jurisdiction. The two unions were joined as interested parties and one of them (“the GMB”) was represented before me by Mr Gerard McDermott QC and Mr James Boyd. The QIP has taken no part in these proceedings, although joined as an interested party.

In order to explain the sequence of events it is necessary to summarise, and in some respects set out, the provisions of Part I of Schedule A1. The schedule was introduced as from 6^th June 2000 by s.1 of the Employment Relations Act 1999. A very helpful summary, rather more detailed than I propose here to set out, can in fact be found at paragraphs 5 to 15 of the first-instance judgment of Elias J in the Kwik-Fit case ([2002] ICR at pp1221-2).

Where a trade union (or trade unions) wishes to obtain recognition to be entitled to conduct collective bargaining (defined to mean “negotiations relating to pay, hours and holidays”) it is entitled to make a request to the employer for recognition. Certain conditions as to the making of such a request are imposed by Schedule A1 and a time-table is also provided. If the request is accepted by the employer, all well and good. If not, the union can (subject to certain conditions) apply for recognition. A function of the CAC is to decide whether the application is valid. Important requirements as to admissibility are (see paragraph 36 of Schedule A1) that members of the union constitute at least 10% of the workers constituting the “relevant bargaining unit” (a defined phrase) and that a majority of the workers constituting the relevant bargaining unit would be likely to favour recognition of the union.

Provision is then made for determination of the relevant bargaining unit. If that is not agreed, the CAC decides. If the relevant bargaining unit determined by the CAC coincides with that proposed by the union, then a ballot may have to be held – although circumstances are specified where a ballot is not required. If the bargaining unit so determined by the CAC does not coincide with that proposed by the union, the CAC then has to determine whether the application is invalid. If it determines that it is valid, then again a ballot may be necessary.

Where a ballot is necessary, it is conducted by a QIP appointed by the CAC. There is, in fact, a statutory instrument (the Recognition and Derecognition Ballots (Qualified Person) Order 2000) which specifies the conditions applicable to those authorised to be a QIP. By paragraph 1, such person may be an individual qualified to be a solicitor or auditor. By paragraph 4, certain institutions – essentially ones specialising (among other things) in electoral process – are specified as qualified to be a QIP.

Express provision is made for the employer to cooperate in the ballot process, with potential sanction (as ordered by the CAC) if it does not. If the result of the ballot is in favour of recognition, the CAC must make a declaration of recognition. If the result is against recognition, the CAC must declare that the union is not entitled to recognition. A consequence of a declaration of recognition is that the employer must recognise the union in respect of the relevant bargaining unit; a consequence of a declaration against recognition is that no fresh application for recognition can be made by the union in respect of that bargaining unit for a period of 3 years.

The key provisions relevant to the issues arising in this case are paragraphs 22 to 29 of Schedule A1. They read as follows:

“22

(1)

This paragraph applies if—

(a)

the CAC proceeds with an application in accordance with paragraph 20 or 21, and

(b)

the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union (or unions).

(2)

The CAC must issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.

(3)

But if any of the three qualifying conditions is fulfilled, instead of issuing a declaration under sub-paragraph (2) the CAC must give notice to the parties that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether they want the union (or unions) to conduct collective bargaining on their behalf.

(4)

These are the three qualifying conditions—

(a)

the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(b)

a significant number of the union members within the bargaining unit inform the CAC that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(c)

membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.

(5)

For the purposes of sub-paragraph (4)(c) membership evidence is—

(a)

evidence about the circumstances in which union members became members;

(b)

evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

23

(1)

This paragraph applies if—

(a)

the CAC proceeds with an application in accordance with paragraph 20 or 21, and

(b)

the CAC is not satisfied that a majority of the workers constituting the bargaining unit are members of the union (or unions).

(2)

The CAC must give notice to the parties that it intends to arrange for the holding of a secret ballot in which the workers constituting the bargaining unit are asked whether they want the union (or unions) to conduct collective bargaining on their behalf.

24

(1)

This paragraph applies if the CAC gives notice under paragraph 22(3) or 23(2).

(2)

Within the notification period—

(a)

the union (or unions), or

(b)

the union (or unions) and the employer,

may notify the CAC that the party making the notification does not (or the parties making the notification do not) want the CAC to arrange for the holding of the ballot.

(3)

If the CAC is so notified—

(a)

it must not arrange for the holding of the ballot,

(b)

it must inform the parties that it will not arrange for the holding of the ballot, and why, and

(c)

no further steps are to be taken under this Part of this Schedule.

(4)

If the CAC is not so notified it must arrange for the holding of the ballot.

(5)

The notification period is the period of 10 working days starting—

(a)

for the purposes of sub-paragraph (2)(a), with the day on which the union (or last of the unions) receives the CAC’s notice under paragraph 22(3) or 23(2), or

(b)

for the purposes of sub-paragraph (2)(b), with that day or (if later) the day on which the employer receives the CAC’s notice under paragraph 22(3) or 23(2)

25

(1)

This paragraph applies if the CAC arranges under paragraph 24 for the holding of a ballot.

(2)

The ballot must be conducted by a qualified independent person appointed by the CAC.

(3)

The ballot must be conducted within—

(a)

the period of 20 working days starting with the day after that on which the qualified independent person is appointed, or

(b)

such longer period (so starting) as the CAC may decide.

(4)

The ballot must be conducted—

(a)

at a workplace or workplaces decided by the CAC,

(b)

by post, or

(c)

by a combination of the methods described in sub-paragraphs (a) and (b),

depending on the CAC’s preference.

(5)

In deciding how the ballot is to be conducted the CAC must take into account—

(a)

the likelihood of the ballot being affected by unfairness or malpractice if it were conducted at a workplace or workplaces;

(b)

costs and practicality;

(c)

such other matters as the CAC considers appropriate.

(6)

The CAC may not decide that the ballot is to be conducted as mentioned in sub-paragraph (4)(c) unless there are special factors making such a decision appropriate; and special factors include—

(a)

factors arising from the location of workers or the nature of their employment;

(b)

factors put to the CAC by the employer or the union (or unions).

(8)

An order under sub-paragraph (7)(a) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(9)

As soon as is reasonably practicable after the CAC is required under paragraph 24 to arrange for the holding of a ballot it must inform the parties—(a) that it is so required;(b) of the name of the person appointed to conduct the ballot and the date of his appointment;

(c)

of the period within which the ballot must be conducted;

(d)

whether the ballot is to be conducted by post or at a workplace or workplaces;

(e)

of the workplace or workplaces concerned (if the ballot is to be conducted at a workplace or workplaces).

26

(1)

An employer who is informed by the CAC under paragraph 25(9) must comply with the following three duties.

(2)

The first duty is to co-operate generally, in connection with the ballot, with the union (or unions) and the person appointed to conduct the ballot; and the second and third duties are not to prejudice the generality of this.

(3)

The second duty is to give to the union (or unions) such access to the workers constituting the bargaining unit as is reasonable to enable the union (or unions) to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved.

(4)

The third duty is to do the following (so far as it is reasonable to expect the employer to do so)—

(a)

to give to the CAC, within the period of 10 working days starting with the day after that on which the employer is informed under paragraph 25(9), the names and home addresses of the workers constituting the bargaining unit;

(b)

to give to the CAC, as soon as is reasonably practicable, the name and home address of any worker who joins the unit after the employer has complied with paragraph (a);

(c)

to inform the CAC, as soon as is reasonably practicable, of any worker whose name has been given to the CAC under paragraph (a) or (b) but who ceases to be within the unit.

(5)

As soon as is reasonably practicable after the CAC receives any information under sub-paragraph (4) it must pass it on to the person appointed to conduct the ballot.

(6)

If asked to do so by the union (or unions) the person appointed to conduct the ballot must send to any worker—

(a)

whose name and home address have been given under sub-paragraph (5)

(b)

who is still within the unit (so far as the person so appointed is aware),

any information supplied by the union (or unions) to the person so appointed.

(7)

The duty under sub-paragraph (6) does not apply unless the union bears (or unions bear) the cost of sending the information.

(8)

Each of the following powers shall be taken to include power to issue Codes of Practice about reasonable access for the purposes of sub-paragraph (3)—

(a)

the power of ACAS under section 199(1);

(b)

the power of the Secretary of State under section 203(1)(a).

27

(1)

If the CAC is satisfied that the employer has failed to fulfil any of the three duties imposed by paragraph 26, and the ballot has not been held, the CAC may order the employer—

(a)

to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and

(b)

to do so within such period as the CAC considers reasonable and specifies in the order.

(2)

If the CAC is satisfied that the employer has failed to comply with an order under sub-paragraph (1), and the ballot has not been held, the CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

(3)

If the CAC issues a declaration under sub-paragraph (2) it shall take steps to cancel the holding of the ballot; and if the ballot is held it shall have no effect.

begin until a date which falls after the end of the decision period.

28

(1)

This paragraph applies if the holding of a ballot has been arranged under paragraph 24 whether or not it has been cancelled.

(2)

The gross costs of the ballot shall be borne—

(a)

as to half, by the employer, and

(b)

as to half, by the union (or unions).

(3)

If there is more than one union they shall bear their half of the gross costs—

(a)

in such proportions as they jointly indicate to the person appointed to conduct the ballot, or

(b)

in the absence of such an indication, in equal shares.

(4)

The person appointed to conduct the ballot may send to the employer and the union (or each of the unions) a demand stating—

(a)

the gross costs of the ballot, and

(b)

the amount of the gross costs to be borne by the recipient.

(5)

In such a case the recipient must pay the amount stated to the person sending the demand, and must do so within the period of 15 working days starting with the day after that on which the demand is received.

(6)

In England and Wales, if the amount stated is not paid in accordance with sub-paragraph (5) it shall, if a county court so orders, be recoverable by execution issued from that court or otherwise as if it were payable under an order of that court.

(7)

References to the costs of the ballot are to—

(a)

the costs wholly, exclusively and necessarily incurred in connection with the ballot by the person appointed to conduct it,

(b)

such reasonable amount as the person appointed to conduct the ballot charges for his services, and

(c)

such other costs as the employer and the union (or unions) agree.

29

(1)

As soon as is reasonably practicable after the CAC is informed of the result of a ballot by the person conducting it, the CAC must act under this paragraph.

(2)

The CAC must inform the employer and the union (or unions) of the result of the ballot.

(3)

If the result is that the union is (or unions are) supported by—

(a)

a majority of the workers voting, and

(b)

at least 40 per cent of the workers constituting the bargaining unit,

the CAC must issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the bargaining unit.

(4)

If the result is otherwise the CAC must issue a declaration that the union is (or unions are) not entitled to be so recognised.

(5)

The Secretary of State may by order amend sub-paragraph (3) so as to specify a different degree of support; and different provision may be made for different circumstances.

(6)

An order under sub-paragraph (5) shall be made by statutory instrument.

(7)

No such order shall be made unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament.”

In Part IX of Schedule A1 are two other paragraphs which need to be mentioned. The first is paragraph 166:

“166

(1)

If the CAC represents to the Secretary of State that paragraph 22 or 87 has an unsatisfactory effect and should be amended, he may by order amend it with a view to rectifying that effect.

(2)

He may amend it in such way as he thinks fit, and not necessarily in a way proposed by the CAC (if it proposes one).

(3)

An order under this paragraph shall be made by statutory instrument.

(4)

No such order shall be made unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament””

Paragraph 167 provided that the Secretary of State may issue guidance to the CAC as to the way in which it exercises its functions under paragraphs 22 and 87. Paragraph 171 (headed “CAC’s general duty”) provides as follows:

“171

In exercising functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workplace, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned.”

Substantial amendments to Schedule A1 are proposed in the Employment Relations Act 2004 (although I was told that the 2004 Act has not, in the relevant respects, yet been brought into force). These prospective amendments, in my view, do nothing to reduce the byzantine complexity of the Schedule. Amongst the proposed amendments are amendments relating, for example to unfair practice in relation to recognition ballots (see s.10), with provision for complaint to, and determination by, the CAC. By s.15 paragraph 166 of Schedule A1 is to be amended. The amendment is to be as follows:

“s 15 Power to amend Schedule A1 to the 1992 Act

(1)

Paragraph 166 of Schedule A1 to the 1992 Act (power of Secretary of State to amend that Schedule) is amended as follows.

(2)

For sub-paragraphs (1) and (2) substitute-

"(1)

This paragraph applies if the CAC represents to the Secretary of State that a provision of this Schedule has an unsatisfactory effect and should be amended.

(2)

The Secretary of State, with a view to rectifying the effect-

(a)

may amend the provision by exercising (if applicable) any of the powers conferred on him by [paragraphs 7(6), 29(5), 121(6), 169A, 169B] and MIA, or

(b)

may amend the provision by order in such other way as he thinks fit.

(2A) The Secretary of State need not proceed in a way proposed by the CAC (if it proposes one).

(2B) Nothing in this paragraph prevents the Secretary of State from exercising any of the powers mentioned in sub-paragraph (2)(a) in the absence of a representation from the CAC."

(3)

In sub-paragraph (3), for "this paragraph" substitute " sub-paragraph (2)(b)".”

The CAC is a body constituted by statute: currently the 1992 Act as amended (see s.259 ff.). The statute does not specify what the general functions of the CAC are, and I was not informed of any form of constitution or charter which the CAC has chosen to promulgate about its functions. However there is a most interesting and informative article about the activities of, and antecedents of, the CAC by Professor Rideout, published in the Industrial Law Journal Vol 31 No 1 March 2002. That article amongst other things states that the CAC is primarily concerned to resolve disputes rather than to determine the existence of legal rights. It also emphasises the point that the CAC will endeavour to achieve conciliation and to assist the parties in resolving disputes by negotiation.

It was common ground before me that the CAC can have no inherent jurisdiction and that its functions and powers must be derived from the statutory provisions.

So far as proceedings under Schedule A1 are concerned, the 1992 Act makes provision for those in s.263A. By s.263A (7) it is provided that the panel of the CAC concerned should (subject to certain provisions identified) “determine its own procedure”. However that ostensibly wide language is generally taken (see para 4.5 of the Review of Employers Relations Act 1999, December 2003) as not extending to including powers to, for example, order disclosure of documents or compel attendance of witnesses.

No provision is made for an appeal from a decision of the CAC. A proposal for a right of appeal to be provided was mooted by the Confederation of British Industry, certain of whose members had apparently suffered bruising experiences from decisions of the CAC. The Trades Union Congress did not support that proposal: and the Review indicates a conclusion rejecting the proposal.

It follows that the only relief that can ordinarily be claimed in respect of a decision of the CAC is by way of judicial review. Given the statutory context, the nature of disputes ordinarily being resolved by the CAC and the expertise its panel members bring to bear in the field of industrial relations, it is clear, in my view, that decisions of the CAC will be subjected only to a relatively low intensity of review by the Administrative Court. As stated by Moses J in R (British Broadcasting Corporation)vCentral Arbitration Committee [2003] EWHC 1375 Admin; [2003] ICR 1542 at p.1547: “It is important to emphasise the restricted scope for intervention by this Court”: see also the comments of Buxton LJ in the Kwik –Fit case cited at page 1548. Moses J also referred to the desirability of avoiding the position whereby matters “get hopelessly bogged down with legal challenges”.

The company manufactures conservatories and sunroom systems, with some 1,200 employees in its group. There are two main manufacturing sites in the UK, at Clitheroe and Accrington. There are also depots and warehouses at Bristol and Bedford. Its practice has been to conduct industrial relations through a Joint Consultative Committee.

The GMB and another union (the URTU) had members within the Company’s work-force. The unions desired recognition for collective bargaining purposes and on 14^th October 2003 initiated a request, and then an application, accordingly. The bargaining unit could not be agreed, and in accordance with the provision of Schedule A1 it was for the CAC to decide that (see paragraph 19 of the Schedule). On the 19^th December 2003 the CAC decided that the relevant bargaining unit was all weekly paid workers below the level of supervisor employed by the company in Great Britain. On the 19^th February 2004 the CAC decided that, although this bargaining unit differed from that proposed by the unions, the application was still valid (see paragraph 20 of the Schedule). It, became, as was common ground, necessary for a ballot to be held. The unions argued for a combined work-place and postal ballot; the company argued for an all postal ballot. On the 27^th February 2004 the CAC decided that the ballot should be an all postal ballot (see paragraph 25 of the Schedule).

As provided by paragraph 25 of the Schedule, the ballot was required to be conducted by a QIP, appointed by the CAC. The QIP appointed by the CAC (on the 29^th March 2004) was Popularis Limited (“Popularis”), one of the organisations specified in paragraph 4 of the 2000 Regulations. Popularis is a company based in Kingston-upon-Thames, Surrey. The particular individual at Popularis having overall charge of the matter was Ms Anne Hock, a director.

Ballot papers were sent out by Popularis by first class post on 14^th April 2004. They were in a very clear format. The ballot papers were accompanied by a pre-paid stamped or franked (1^st class) envelope. Each ballot paper said at its foot in bold type:

“Your completed Ballot Paper should be returned to REACH the Independent Scrutineer Popularis Ltd, 12 Kingsmill Business Park, Chapel Mill Road, Kingston Upon Thames KT1 3GZ not later than 10am on 28^th April 2004”

The period of the ballot, I add, had been decided, and notified on 18^th March 2004, by the CAC (see paragraph 25(9) of the Schedule). Popularis had on 1^st April 2004 been provided with a list of all relevant employees by the company (accepted as an accurate list).

It has never been in dispute that the unions were active in connection with the ballot. They held a number of meetings for employees (both before and during the ballot period) and had explained arrangements for obtaining replacement ballot papers (to be initiated by contacting either the union concerned or the human resources department of the company) if one had not been received. In addition, the GMB arranged for literature to be sent by the QIP to all the employees (at their home addresses), stressing the timetable and the need to return the ballot papers in the pre-paid envelopes. Posters advertising meetings with regard to the ballot were also put up by the GMB on notice boards at the company’s premises.

Thereafter certain employees complained, either to the unions or to the company, that they had not received ballot papers. They in turn sought to notify Popularis. In the event, some of the employees in due course received the original ballot papers sent to them.

In this regard, the GMB sent (as the CAC accepted) an e-mail on 19^th April 2004 (timed 14.50) to Ms Hock, containing nine names. It was Ms Hock’s position subsequently that she never received such an email: a statement that the CAC accepted in its decision. In consequence, replacement ballot papers were not sent out to those nine individuals: although three subsequently received the original ballot forms through the post (as the CAC found). The union took no steps to check that its e-mail had been received or had been acted upon.

On the afternoon of the 23^rd April 2004 (a Friday) the company caused to be displayed a notice on all of its internal notice boards. This, in prominent type, requested the return of Ballot Forms “now (if you have not already done so) to ensure your vote counts. If you have not received your Ballot Form please contact HR”. On Monday (three individuals) and Tuesday (one individual) the following week, certain employees telephoned the HR department to say they had not received the ballot papers: and the company immediately e-mailed their names to Popularis. In the event (as the CAC found) three of those four individuals did not receive ballot papers in time. One tenaciously persisted and managed to obtain and return (on Popularis’ suggestion) his ballot-paper by fax.

The ballot closed on 28^th April 2004, in accordance with the time-table set by the CAC. Later on that day, Ms Hock sent by fax a letter (erroneously bearing the date 27^th April 2004) to the CAC. It was in this form:

“CENTRAL ARBITRATION COMMITTEE

ULTRAFRAME (UK) LTD – GMB & URTU

Result of ballot:

Do you want the GMB & URTU to be recognised for the purposes of collective bargaining on your behalf?

Yes 160

No 137

On Thursday 29^th April 2004, the unions telephoned Popularis to complain that some employees had not received ballot papers; and a letter was written to CAC by GMB to like effect, stating that several members did not receive ballot papers “despite the matter being brought to the attention of Popularis by myself on Monday 19^th April 2004”.

The company wrote a detailed letter to the CAC on 3^rd May 2004. It in part said this:

“We feel it is necessary to make clear the position of Ultraframe regarding the events following the completion of the balloting process.

We want to make it very clear that we feel that every employee has had ample opportunity to vote on whether they wish to be represented by the GMB union.

•

On every noticeboard there is a poster urging people to vote and to contact Human Resources if they have not received a ballot paper. A number of people did this and were able to vote.

•

At the union briefings during the access period the union officials told everyone to contact them if they had not received a ballot paper to ensure that they voted.

•

All union members and non-union petitioners were also provided with cards by the union prompting them to vote and asking them to indicate how they had voted.

•

There were also union activists encouraging their work colleagues to vote while full time union officials were onsite during the access period.

•

JCC representatives were advising employees on how to vote if they had not received a ballot paper ”

In the light of these points, the high degree of publicity about the vote and the fact that the postal ballot took place over 14 days, it is beyond our comprehension that anyone who did want to vote was not given the opportunity to do so”

The letter also went on to state unhappiness in the delay that had occurred in formally finalising the result of the ballot; and querying why the complaint of the unions had been made after the ballot had concluded rather than on (if not the day before) the day of the ballot (if ballot papers had not been received); and suggesting that the unions, but not the company, had been tipped off about the result prior to formal notification to the CAC. The letter went on

“We are very clear that everyone in the business has had the opportunity to vote in the ballot and therefore the allegation that some people may not have received ballot papers does not, in our opinion, prevent them from having voted. We would therefore refute any claim that this should lead to a hold a [sic] further ballot. The whole recognition process has been disruptive to our business and the extending of the process unnecessarily is also of serious concern”

It is easy to understand the company’s sentiments as expressed in this letter. One can also understand the position of the unions on the footing, if it be right, that had the necessary ballot-papers been received the necessary four votes would have been cast to achieve a declaration of recognition.

At all events, the CAC did not issue a declaration of non-recognition upon being informed of the result by the QIP on the 28^th April 2004. It never has. On the contrary, in the light of the complaints made, it decided on 30^th April 2004 to investigate the matter: and the hearing on 11^th June 2004 (held in Preston) was the result: with the eventual direction being that the ballot be re-run.

I was told that the hearing lasted a (very) full day. The company was represented by Ms Mountfield, attending with a number of representatives of the company. The unions appeared by their solicitor, with other representatives. Various statements were before the CAC (although none from the QIP). Five of the six employees who had said they had not received ballot papers and who had been the subject of the unions’ e-mail of 19^th April gave oral evidence. All had previously made written statements, provided to the CAC, four of which statements indicated an intention to vote for the unions. Quite who all the people were who gave evidence at the hearing is not entirely clear from the decision on its face. But in terms of oral evidence it seems at least to have been those five employees and also one other individual employee, a Mr Broadbent, (who, however, was found to have taken no steps at all to obtain a replacement paper).

Ms Mountfield (who, like the union’s legal representative, had put in written submissions to the CAC) argued at the hearing that every opportunity to vote had been given to all employees. She also argued, by reference to paragraph 29 of Schedule A1, that the CAC was obliged to issue a declaration of non-recognition, having been informed of the result of the ballot by the QIP, and that the only route of challenge was by judicial review; and that the CAC had no power to order a re-run of the ballot. Thus it was made clear that the parties were not mutually asking the CAC to resolve the dispute and were not agreeing to that course. On the contrary, one party (the company) was objecting to the CAC entertaining the matter. The unions’ legal representative mounted arguments that the ballot period of 14 days was too short (although it was the CAC itself which had previously decided on the period). He also referred to evidence of local postal difficulties. He submitted that an insufficient opportunity to vote had been given. Reference was made to paragraph 23 (2); and, in addition, it was submitted that the course of action in declaring the ballot void was “also” open to the CAC under para 171 of Schedule A1.

The CAC generally is not expressly required by statute to give reasons for its decisions. There can be in the present case no complaint in this respect. The panel in this case gave a lengthy and thoughtful written determination on 29^th June 2004, 42 paragraphs in length and containing a full adjudication.

The panel outlined the background and summarised the respective submissions. It indicated its primary findings of fact; gave its conclusions on those facts; and addressed the issue of whether it had power to order a re-run of the ballot. The conclusion on that was expressed in this way:

“… Paragraph 23 (2) sees to us to specify the sort of ballot the CAC must organise, i.e. it must be a secret ballot; the question to be asked, i.e. whether those voting are in favour of the applicant unions conducting collective bargaining on their behalf; and the people whose opinions are to be canvassed, i.e. the ‘workers constituting the bargaining unit’ – not some of them but all of the them [sic].

31.

We think that paragraphs 22(3) and 23(2) are absolutely central to the structure of the legislation, which places the final decision on recognition or no recognition in the hands of the workers themselves. It is therefore of central importance that the ballot which determines the final stage of the recognition decision should comply with the standards laid down in paragraphs 22 and 23. It follows in our view that, whenever a reference is made subsequently in Part I of the Schedule to ‘the ballot’ or to ‘the results of the ballot’, the reference is to a ballot conducted in accordance with the statutory standards. Accordingly, the simple communication and arithmetic duties imposed on the Panel apply only in the case of a ballot which meets those standards. Where those standards have not been met, paragraph 29 cannot be determinative of what the CAC should do.

32.

What is the position of the CAC in such as case? At least where the CAC becomes aware of a departure from the statutory standards before it issues a declaration of recognition, which is the situation in this case, we take the view that the CAC has the power, indeed probably the duty, to take steps as to the conduct of the existing ballot (if the ballot period has not ended) or to order a new ballot (if it has) in order to ensure that the statutory standards are satisfied. It may be that Ms Mountfield is correct to argue that, once the ballot is closed, the QIP is functus officio and we cannot seek to re-open that ballot and alter its results. However, although the union made such an argument in its written submissions, it expressly resiled from it at the hearing and so we do not need to decide the point.

The panel then addressed the issue of whether members of the bargaining unit were given a fair opportunity to vote. It indicated that “it is the voters’ situation which we need to put at the centre of our analysis”. It concluded that no blame was to be attributed, save to defects in the delivery of the post. It decided that those (such as Mr Broadbent) who did not receive ballot papers but who had taken no steps to avail themselves of the publicised means of obtaining replacements could not be said not to have had a fair opportunity to vote. No one challenges that conclusion. As to the other workers, however, the panel found that of the 9 mentioned in the union’s email of 19^th April 2004 6 never received ballot papers before the 28^th April 2004. It found that all but one of those 6 workers took some further steps during the ballot period, by, for example, contacting the union or JCC or company representatives: see para 23 of the decision. (In paragraph 41, however, the panel said that it “is not clear to us precisely when those steps were taken and in any event they did not always involve the two channels mentioned by the union”). So far as the four individuals who contacted the company on the 26^th April 2004 and 27^th April 2004, one managed to vote in time (by fax); but the others did not. No finding was made as to how those 3 would have voted.

The panel’s conclusion was that the five workers (being, it would thus seem, five out of the six mentioned in the unions’ email of 19^th April 2004) who had enlisted the unions’ support (“did avail themselves of the union’s offer”) but who still had not received a ballot paper in time had not been given a fair opportunity to vote. It was reasonable, the panel decided, for those workers to wait for two days after the unions’ (as it happens, not received) e-mail of 19^th April 2004. The panel considered that further action to obtain a replacement would have had to be taken “by April 23^rd at the latest” and thus there was a “very short window of opportunity of just 2 days in which the workers could have taken effective further steps to obtain replacement ballot papers” (para 41 of the decision). As to the notices displayed by the company on Friday the 23^rd April 2005, five days before the conclusion of the ballot, those were described as being “too late” for workers to obtain a replacement ballot paper and return it to the QIP before the ballot closed, except “by resort to unorthodox methods of communication with the QIP”. The panel concluded that those five workers in the relevant bargaining unit (who, they found, would have voted in favour of the unions) were not given a fair opportunity to vote. Their votes would have affected the overall outcome. A re-run of the ballot was directed accordingly.

It is that decision which the company challenges.

The first point raised by the company is that it was given no chance to deal with the panel’s reasoning (by reference to paragraph 23 (2) of Schedule A1) as to why it had jurisdiction. Ms Mountfield told me that the points set out in the decision in this respect were never raised with her in oral argument; she had no notion, either from the panel’s questions or the unions’ submissions, that such a line of reasoning by reference to paragraph 23 (2) might be adopted; and consequently she never addressed the point in her submissions to the panel.

Given the circumstances, I would accept that it was decidedly uncharitable of the panel to describe (as it did) Ms Mountfield’s arguments as “overlooking” the provisions of paragraphs 22 (3) and 23 (2) of schedule A1. But that having been said, I cannot think that there has been a breach of the rules of natural justice sufficient to vitiate this decision. The question of jurisdiction was, and was known to be, in play. The submissions of Ms Mountfield as to the (asserted) mandatory effect of paragraph 29 were recorded by the panel in its decision. It recorded her argument that there was “no express language in paragraph 29 orelsewhere (emphasis added) in the Schedule expressly empowering the CAC to order a re-run of the ballot”. Moreover, in their written submissions the unions had also –albeit perhaps in a rather woolly way – referred to paragraph 23 (2); and the unions had, using the word “also”, in their written argument relied on paragraph 171 as conferring jurisdiction (connoting that they did not rely on that paragraph as their sole argued basis for jurisdiction).

In my judgment, the issue before the panel was, and was known to be, whether any of the various paragraphs in Schedule A1 relating to the ballot process (paragraphs 22 to 29) conferred the necessary jurisdiction on the panel. Ms Mountfield may not have realised that the panel was minded to adopt the precise form of reasoning that it eventually did. But the question of whether any of the paragraphs in Schedule A1 conferred jurisdiction was properly in issue at the hearing. That suffices. This ground is not made out. I only add that given that the panel’s substantive ruling as to jurisdiction is a point which this court is asked to decide one rather wonders what is the practical purpose of pursuing the point as to natural justice.

I turn then to the central issue. Did the panel of the CAC have the power to order a re-run of the ballot as it did?

Ms Mountfield’s arguments in essence came to this:

The arguments of the CAC and the GMB came to this:

In Harvey on Industrial Relations and Employment Law Issue 171 (published in December 2004) it is bluntly asserted that: “The CAC exercises a supervisory function over the activities of the QIP and the general conduct of the ballot which is not expressly conferred by the [1992 Act]”: para 949.07. However the subsequent text is altogether more cautious. It acknowledges that Schedule A1 of the 1992 Act does not provide “an express cure for hiccups”: but states that the CAC has “neatly filled the lacuna by ingenious interpretation”. It is the decision of the CAC in the instant case that is relied on by Harvey as providing that “ingenious interpretation”. Harvey goes on to refer to a few other instances where the CAC has presumed that it had such power. But, as counsel before me were agreed, the point in those other cases was not substantively argued. Indeed it may perhaps be that the parties in most of those cases were agreed that the CAC should have jurisdiction. I should add that in his article, at page 28, Professor Rideout had stated that “it has not been the practice of the CAC to concern itself with the method used by the QIP to conduct the ballot.” I also add that counsel before me were agreed (as was the CAC itself in its decision) that paragraph 171 could not of itself provide the necessary jurisdiction. In my view, that acceptance is correct. Paragraph 171 relates to, and is ancillary to, the exercise of the CAC’s functions: it does not prescribe such functions.

The position of Mr Linden and Mr McDermott was to accept that, with regard to the interpretation for which they argued, there was indeed a lacuna in the statute: but they submitted that it could properly be filled by a purposive approach to the interpretation of Schedule A1. Ms Mountfield did not really dispute that Schedule A1 could properly be read purposively. Indeed she accepted (by way of example) that if, for instance, the QIP died or became incapacitated after appointment the CAC could appoint a replacement: that being necessarily inherent in the power of appointment expressly conferred on the CAC by paragraph 25 (2). But she submitted that no proper process of purposive interpretation could fill this asserted lacuna in the way now proposed, so as to confer on the CAC a general supervisory jurisdiction in relation to the conduct of the ballot: on the contrary, that positively went against the words used. She reminded me of the observations of Lord Nicholls in Re S [2002] 2 AC 291 at p313, where he observed that a meaning which departed substantially from a fundamental feature of an Act of Parliament was likely to have crossed the boundary between interpretation and amendment.

Having reflected on the arguments, I have, on the whole, come to the conclusion that Ms Mountfield’s central submissions are correct.

Turning first to the interpretation of paragraph 29, the wording of that seems to me to be specific. The repeated use of the word “must” connotes that the CAC is required to act as that paragraph states. That is mandatory.

Mr Linden however mounted an argument to the contrary which certainly merits the epithet “ingenious.”

He first submitted that the wording of paragraph 29 (1) connotes that the phrase “as soon as is reasonably practicable” extends to each obligation on the CAC under the paragraph. That is plainly correct. He then submitted that the phrase “as soon as is reasonably practicable” was apt to extend to a position where (in his phrase) something had “gone wrong” with the ballot. If something had so gone wrong then the CAC could properly conclude that it was not “reasonably practicable” for the CAC to make a declaration under paragraph 29 (3) or (4).

In my judgment, this is not correct.

Mr Linden’s approach to the construction of the other relevant paragraphs in Schedule A1 is also underpinned by what he asserts is the clear parliamentary purpose that disputes relating to ballots under Schedule A1 should be raised with, and resolved by, the CAC: the specialist and independent body, which will encourage conciliation and which can deal with matters more speedily and more cheaply than the courts. Moreover, as Mr McDermott tellingly pointed out, the trend of legislation in the employment and labour relations fields in recent decades has been to assign disputes to specialist tribunals.

These points were powerfully made. But as I see it broad assertions as to the desirability of disputes under Schedule A1 being resolved by the CAC cannot properly be deployed as in themselves contradicting the words expressly used in Schedule A1.

Thus paragraph 25 (2) is explicit: the ballot must be conducted by the QIP. That provision does not say – and nowhere in Schedule A1 is it said – that the ballot is to be conducted by, or under the supervision of, the CAC. Moreover, that is not without sense. The QIP (who must have the qualifications provided by paragraph 25(7) and as specified by the statutory instrument) is independent and can be taken to be expert in electoral processes. The QIP is under an obligation, derived from the statute as well as from its contract of retainer, to take reasonable steps to ensure that the ballot is conducted fairly and that the relevant employees have the proper opportunity to vote. There is force in Ms Mountfield’s submission, in that context, that save where otherwise expressly provided issues relating to the conduct of the ballot are to be left to the QIP, the expert in electoral matters (rather than the CAC, the expert in industrial relations). If electoral irregularity is alleged, it is for the QIP to investigate and seek to put right; and in a suitable case the QIP may, for example, even say that there will be no result announced or it may request the CAC to extend time under paragraph 25 (3). Moreover, there is clear sense in an approach which involves concerned parties raising their concerns as to the electoral process with the QIP before the ballot is concluded rather than waiting to raise them with the CAC after the result has been announced.

That this was Parliament’s intention seems to me to be reinforced by other provisions in Schedule A1. Where the CAC is to involve itself in the conduct of the ballot, express provision is made: for example, as to timing and form (see paragraph 25) or where the employer has breached one of its duties (see paragraph 27: thus it is to be noted that the CAC is expressly empowered, where the ballot has not been held, to order the taking of such steps to remedy the failure of the employer as the CAC considers reasonable.) The very fact that these express provisions (which can be said to focus on “labour relations” issues) are included to my mind highlights the lack of any provision as to supervision generally by the CAC of the conduct of the ballot and the lack of any provision to remedy other failures in the ballot generally. This, to my mind, indicates that it was not intended that the CAC (rather than the QIP) should have the ultimate duty, or power, of general supervision of the conduct of the ballot.

The prospective amendment provisions of the Employment Relations Act 2004 also, I think, are at least consistent with that view. I had wondered if it was legitimate to refer to a subsequent Act of Parliament as an aid to construction of the 1992 Act. But given that the 2004 Act, in the relevant respects, proposes amendments to the 1992 Act which, as amended, must then be read as a whole, I rather think that it is legitimate: and counsel before me did not really argue the contrary. There is force in Mr Linden’s and Mr McDermott’s point that the prospective amendments all stipulate that the identified disputes (including as to irregularity or unfair practice in relation to recognition and derecognition ballots) are to be referred to the CAC. Mr Linden also observes that the 2004 Act has not sought to negate the kind of practice adopted here. But there is no less force in Ms Mountfield’s point that Parliament has felt the need to make express provision for at least these matters in the 2004 Act: which does not obviously connote a presumption that there already exists a general supervisory jurisdiction available to the CAC in the context of arranging a ballot under Schedule A1. That point, I think, also gains some support from the provisions of s.15 of the 2004 Act, providing an amendment to paragraph 166 of Schedule A1: which enables the Secretary of State to amend a provision of Schedule A1 “in such [other] way as he thinks fit” where the CAC has represented that a provision of Schedule A1 has an unsatisfactory effect.

The CAC, in the present case, however seems to have thought that the answer, whereby it had the requisite statutory jurisdiction, was to be found in the wording of paragraph 23 (2) – the “ingenious interpretation” referred to in Harvey.

I do not think that wording, naturally read, can carry the weight given to it by the CAC. The CAC does not perhaps fully spell out its reasoning in paragraph 32 of its decision. But I apprehend that the reasoning is in essence that the words of paragraph 23 (2) impose an existing obligation on the CAC to arrange the ballot in which the workers constituting the bargaining unit are asked whether they want the union (or unions) to conduct collective bargaining on their behalf; that that connotes a continuing obligation on the part of the CAC throughout the ballot; and the CAC cannot be required to make a declaration of recognition where the “statutory standards” have not been met.

Reflecting what I have already said, I have considerable difficulty with that reasoning:

Overall, therefore, my opinion is that the wording of the relevant paragraphs in Schedule A1 is against the interpretation adopted by the CAC. The purposive arguments advanced by Mr Linden and Mr McDermott are not, in my judgment, sufficient to gainsay the meaning to be extracted from the express wording Parliament has seen fit to use.

However what, I have to say, has given me some concern is to identify the route by which parties with a genuine grievance can obtain a remedy. On the CAC’s and GMB’s approach, the answer is straightforward – by complaint to the CAC (provided, at least, no declaration has been made under paragraph 29). On Ms Mountfield’s approach, the answer is by complaint to the courts (and, specifically, the Administrative Court).

Mr Linden’s first point was to say in effect that a day’s hearing in front of a panel of the CAC in Preston was altogether preferable for parties in a context such as the present to a day or so in front of a High Court Judge in London: and it is not for me to gainsay that. But the High Court in fact has some advantages – it can order production of documents; it can move very speedily if necessary; it can compel attendance of witnesses; it can grant suspensory interim injunctions; and its judges are well trained in assessing witness evidence. But if the route to a remedy is by judicial review, that in itself will – quite apart from the concern as to costs – limit the availability of a substantive challenge. Ms Mountfield’s answer to that was to say that was, in effect, a good thing, and the restrictions of the public law approach and also of the filter of permission, as required in the Administrative Court, were thoroughly desirable in this context, where finality is an important consideration. That, I think, is a tenable viewpoint.

More difficult, to my mind, is to assess the viability of such proceedings. Take the present case: it is difficult to see how the conduct of the QIP (assuming that a QIP is in principle amenable to judicial review) could here have been liable to judicial review, since it is difficult to see how any act or omission, let alone any decision, on its part was unfair or unreasonable. One can think of other examples. On the approach of Ms Mountfield there are some potentially unsatisfactory permutations here. But, on the whole, I do not think this consideration - which Mr Linden and Mr McDermott naturally pressed in their arguments in favour of a purposive construction – can operate so as to negate the natural interpretation of the relevant paragraphs of Schedule A1. Moreover, there may, I think, potentially be the prospect of a claim in the Queen’s Bench Division or Chancery Division, if not in the Administrative Court, where there has in fact been a failure by the QIP to give a proper opportunity for the relevant voters to vote, contrary to the duties inherently imposed by the statute on the QIP. Moreover, what if the purported irregularity is identified after a declaration has been made by the CAC? On any footing it is difficult to see how, under the statutory provisions, the CAC can then have any jurisdiction to nullify the ballot and cancel its declaration. But if it is accepted that the route to relief in such circumstances is through the courts then that makes less unpalatable a conclusion that the route to relief is through the courts, rather than the CAC, before a declaration is made, in the case of any such irregularity. I would also add that, in the context of elections, it is well established that on appropriate evidence of fraud or grave irregularity the court has power to declare that an election or ballot is void, as not being a true election or ballot at all.

I therefore conclude that the CAC had no jurisdiction to order the re-run of the ballot as it did. There clearly is a lacuna in the statute here, particularly if the intention really was, in circumstances such as the present, that the CAC should be able resolve a dispute arising in this way. In my view, however, the submissions of the CAC and the GMB ask the Court to engage in a degree of statutory trench-filling which goes beyond what a court may properly do, in the light of the provisions that Parliament has chosen to use in Schedule A1. If Parliament desires the CAC to have such a jurisdiction, then an amendment is called for; or, alternatively, the Secretary of State may (in the appropriate circumstances) prospectively exercise his powers under the amended paragraph 166 of Schedule A1.

I therefore conclude that I should quash the decision of the CAC, as having been made without jurisdiction.

Having reached that conclusion, the final ground advanced by the company does not fall for decision. However, having heard full argument on it, I propose to indicate (if, contrary to my view, the CAC did have jurisdiction) what my conclusion would have been – albeit I will do so relatively briefly.

The CAC assessed the evidence adduced before it and found as primary facts that five workers (had they voted) would have voted for the unions; and that would have effected the overall outcome. It then concluded, from its primary findings, that such workers had not been given a reasonable opportunity of voting. If that conclusion was a proper one, then the further conclusion that the ballot should be re-run cannot, in my view, possibly be attacked as irrational: and it would accord with a proper exercise of the wide discretionary powers conferred by paragraph 171.

I have, however, great difficulty with the conclusion that those five workers had not been given a proper opportunity to vote. Certainly, in my view, a conclusion (on the evidence adduced) that they had been given a proper opportunity to vote could not have been attacked as irrational: but of course the converse is not necessarily so. My initial view was that, even on the primary evidence as found by the CAC, I would not have concluded that a proper opportunity to vote had been denied to those workers. But that is not the test. The decision–maker here (assuming jurisdiction) is the CAC. It has a wide margin of judgment and the threshold for any interference by the Court is a high one.

My initial view, therefore, was also that I should not interfere under this ground of claim. But on further reflection I do not think that such a conclusion would be right.

My concerns are, in essence, these. The QIP itself was satisfied that the ballot had been a proper one. There is no suggestion of any breach of duty by the QIP or any want of fairness on its part. The CAC itself had set the timetable of 14^th to 28^th April 2004. Employees had been repeatedly told of the need to vote by the 28^th April 2004, the unions had been active throughout and there had been a number of meetings stressing the position and alluding to the ability to get replacement ballot papers. The CAC, as it happens, had been minded to criticise as too late the further announcement by the company (by the posters put on the notice boards) on the afternoon of Friday 23^rd April 2004. I find it difficult to see cause for such criticism: that notice gave a further five days for receipt and return of ballot papers, when the first class post was being used, and the relevant workers who said they had not received such papers by Friday could have asked the company or the unions to request replacements immediately. Indeed I would question whether in the circumstances there was a requirement for the posting of such notices by the company at all: the CAC rather seems to have assumed it to be required. Nor is there any obvious explanation for the assertion by the CAC that “not surprisingly” this poster had “little impact” until after the weekend.

As the CAC found, there was a safety mechanism in place with regard to sending out replacement ballot papers. Further the CAC found (paragraph 40 of the decision) that the five workers had availed themselves of the union’s offer (viz to ask on their behalf for replacement papers). The CAC made no specific findings (see paragraph 41 of the decision) that the workers concerned made any specific or effective request of the unions or anyone else other than ones leading up to the e-mail of 19^th April 2004. That e-mail, as the CAC found, was not received by the QIP: and the unions did not thereafter chase the matter up. The unions had been, as I see it, in effect been asked by these workers to make the request on their behalf to QIP for this purpose: and the workers doubtless acted reasonably, in such circumstances, in thereafter leaving it to the unions. But they are, as I see it, affixed with the action (or inaction) of the unions in that regard. As pointed out by Tuckey LJ in Knight v Nicholls [2004] EWCA Civ 68: “But the voter will know that he has not received a ballot paper when he should have done so and that he wants to vote. Any form of voting requires some form of action on the part of the voter”. In the present case, the CAC concluded that the necessary form of action had been shown, by the workers requesting the unions to ask for fresh ballot papers. In my view the reasoning is erroneous. Indeed it almost seems to imply that the unions (and, for that matter, the company) were in this regard in some way the agents of the QIP in securing a reasonable opportunity to vote. That is, I consider, incorrect: the unions here had not been appointed by the QIP but had been selected by these workers as the conduit for making the request. But there was no follow up by the unions to the email of 19^th April 2004 notwithstanding continued non-receipt of the ballot papers. The CAC, moreover, itself concluded (paragraph 40 of the decision) that it was reasonable for the workers then to wait until no replacement ballot papers had arrived on the 21^st April 2004. But the CAC gives no real explanation as to why a further request could not then (i.e. on the 21^st April 2004 and even before the company’s posters were put up on the 23^rd April 2004) have been made: for instance, by the workers contacting the union or HR department and they in turn contacting the QIP in order to obtain replacement ballot papers from the QIP. That omission in its reasoning seems to me to vitiate the CAC’s conclusion. Moreover to say (as the CAC did) that the task of making a further request at that time would have involved “striving….. [with] great personal effort” seems to me, with all respect, a very difficult viewpoint to maintain. Nothing could have been easier, with a view to obtaining ballot papers, than for the employees to contact the union or company; and for them in turn to send out at that time a further email to the QIP, make a phone call, send a fax or even, later on, suggest voting by fax (as one employee in fact successfully did). The safety-net was there in the event that ballot-papers were not received. There was the readily available opportunity to request the QIP to send out fresh ballot papers. But the workers and/or unions failed properly or with due expedition, in the context of the tight time-frame previously fixed by the CAC itself, to avail themselves of it, once no fresh ballot papers had been sent after the abortive email of the 19^th April 2004.

In the circumstances, I would have concluded that it was not properly open to the CAC to decide that these five workers had not been given a fair opportunity to vote: and that the conclusion of the CAC that the ballot should be re-run cannot stand on that ground either.

In the result this claim succeeds. In my view the CAC was not entitled to order a re-run of the ballot and was required, under paragraph 29, to make a declaration of non-recognition. I propose to quash the decision of the CAC accordingly. I will hear counsel as to the precise form of relief appropriately to be granted and on any consequential matters, including the question of costs.