TRANSPORT AND GENERAL WORKERS UNION v ASSOCIATED BRITISH PORTS LIMITED [2001] EWCA Civ 2032

[2001] EWCA Civ 2032Case No Case No: A2/2001/2505
Between
TRANSPORT AND GENERAL WORKERS UNIONAppellantASSOCIATED BRITISH PORTS LIMITEDRespondent
Before
Lord Justice MummeryLord Justice LongmoreMr Justice WallMr R Allen QC and Mr J Galbraithe-Marten (instructed by Messrs Pattison and Brewer for the Appellant)Mr A Pardoe QC and Mr J Tayler (instructed by Messrs Andrew H Jackson for the Respondent)Date 11 December 2001

LORD JUSTICE MUMMERY:

This

[1]is an appeal against an interim injunction granted by Hunt J on 1 November 2001. On the application of the claimant, Associated British Ports Limited (ABP), the judge made an order paragraph (2) of which restrained the Transport and General Workers Union (TGWU) from “(i) Inducing, procuring or persuading any of its members who are authorised Pilots in the Humber Pilotage Area(a) to withdraw or cease to offer their services as such pilots in the Humber Pilotage Area whether through Humber Pilots Limited or otherwise or(b) to break their contracts with Humber Pilots Limited, and from (ii) Inducing or procuring breach by Humber Pilots Limited of its agreement with the Claimant dated 9 October 1991 or the agreement dated 20 October 1988 adopted and amended by that agreement of 9 October 1991 by strike or other industrial action by the same pilots or any of them on or between 6 November 2001 to 4 December 2001 inclusive and any other day or days thereafter in respect of the alleged or any dispute in respect of an alleged refusal by the Claimant to negotiate on terms and conditions, and (iii) from interfering with the trade or business of the Claimant by inducing, procuring or persuading the said pilots by strike or other industrial action by the said pilots or any of them on and between 6 November 2001 to 4 December 2001 inclusive and any other day or days thereafter in respect of the alleged or any dispute in respect of an alleged refusal by the Claimant to negotiate on terms and conditions (a) to withdraw or cease to offer their services as such pilots in the Humber Pilotage Area whether through Humber Pilots Limited or otherwise or (b) by inducing or procuring breach by Humber Pilots Limited of its said agreement with the Claimant”. He further ordered - “(3) The Defendant by 1400 on 2 November 2001 shall withdraw revoke and cancel all and any call, order, direction or advice given whether directly or indirectly to the members referred to in (2) above or any of them to take part in strike action called between 6 November 2001 to 4 December 2001 inclusive and shall take all practical steps by 1400 on 2 November 2001 to notify as soon as practicable each and every Branch Secretary of the defendant in each branch of which the said pilots are members and to instruct each such Branch Secretary (whether by himself or by deputing others to do so) to make reasonable endeavours to notify each and every member by telephone or as otherwise convenient of the same withdrawal revocation and cancellation. (4) The Defendants shall as soon as practicable and in any event by 1400 on 2 November 2001 provide to the claimant a notice signed by its General Secretary or other duly authorised officer in the following form: - “ THIS NOTICE CONCERNS ALL AUTHORISED HUMBER PILOTS WHO ARE MEMBERS OF TGWU AND IS PROVIDED BY TGWU TO ABP FOR THE PURPOSES OF COMMUNICATION TO SUCH PILOTS ” “We confirm in relation to all Humber Pilots the withdrawal, revocation and cancellation of all and any call, order, direction or advice given by TGWU whether directly or indirectly to all or any such pilots to take part in strike action on or between 6 November 2001 and 4 December 2001 or to do any act in breach of the Rules of Humber Pilots Limited or of the Pilots’ agreements with Humber Pilots Limited.”[2]On Monday 5 November 2001 Hunt J delivered an oral judgment giving full reasons for the order of 1 November, indicating that he would be handing down a typed judgment later. Immediately following delivery of the oral judgment an application was made on behalf of TGWU for permission to appeal, which the judge refused on the ground that it had no reasonable prospect of success.[3]The typed judgment of Hunt J was handed down on Friday 9 November 2001. On 16 November TGWU lodged an application in the Civil Appeals Office seeking permission to appeal, attaching to the application a skeleton argument dated 15 November 2001 as settled by junior counsel. On 22 November 2001 I granted permission to appeal on the ground that the proposed appeal had a real prospect of success for the reasons set out in the skeleton argument. I directed that the hearing should be listed expeditiously, if possible in the week beginning 26 November.[4]The hearing was completed within 1 day on 29 November. It was indicated at the conclusion of argument that time was needed to consider the decision and that, in view of the urgency of the case, the decision would be notified to the parties on Monday 3 December. On that date the court announced that it had decided to allow the appeal for reasons to be given in writing later. The court then heard contested applications by both TGWU and ABP. They were determined on the basis that the reasons for the decisions would also be included in the judgments given on the substantive appeal.[5]I have set out in greater detail than would normally be necessary the chronology of the proceedings, since it is material to the determination of one of those applications, as will appear from paragraph 38 et seq below. The Issue[6]It is common ground that the only issue on this appeal is whether TGWU is immune from suit by virtue of section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA), which provides, so far as is material, that an act which induces another person to break a contract or interferes, or induces another person to interfere, with its performance is not actionable in tort if done “ in contemplation or furtherance of a trade dispute”. The excellent arguments advanced by each side focus on the interpretation of “ trade dispute” in TULRA, and its application to the facts of this case. The Statutory Provisions[7]The relevant provisions are all contained in Part V of TULRA, which is concerned with industrial action. As already mentioned, section 219 provides protection from certain tort liabilities in respect of acts done “in contemplation or furtherance of a trade dispute”.[8]The expression “ trade dispute” is defined in section 244 as meaning “.. a dispute between workers and their employer which relates wholly or mainly to one or more of the following –(a) terms and conditions of employment…….(b) …..termination or suspension of employment or the duties of employment, of one or more workers..” Section 244(5) provides that “ In this section- “ employment” includes any relationship whereby one person personally does work or performs services for another; and “worker” in relation to a dispute with an employer, means – (a) a worker employed by that employer;….”[9]Finally, it is necessary to refer to the provisions for the interpretation of “employee” and “worker “ and related expressions contained in sections 295 and 296. “295(1) In this Act – “contract of employment” means contract of service or of apprenticeship, “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment, and “ employer” in relation to an employee, means the person by whom the employee is (or, where the employment has ceased, was) employed.(2) Subsection (1) has effect subject to section 235 and other provisions conferring a wider meaning on “contract of employment” or related expressions. 296(1) In this Act “worker” means an individual who works, or normally works or seeks to work – (a) under a contract of employment, or (b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his,……. (2) In this Act “ employer”, in relation to a worker, means a person for whom one or more workers work, or have worked or normally work or seek to work. ”[10]It is agreed that individual authorised pilots in the Humber Pilotage Area have not entered into a contract of employment with ABP. It is, however, asserted by TGWU, but disputed by ABP, that the pilots in question work under contracts whereby they undertake to do or perform personally any work or services for ABP. ABP denies that it has any contract with the individual pilots and contends that, even if there is a contract, it is not a contract under which the individual pilots undertake to do or perform personally any work or services for ABP. Most of the arguments on this appeal have concentrated on Hunt J’s decision that there was no contract between an authorised pilot and ABP, as the harbour authority. If that ruling is correct the pilots are not “workers” within the meaning of section 296(1)(b) and section 244 of TULRA and there is no “trade dispute” in which TGWU has immunity from the tortious claims of ABP. The Factual Background[11]ABP, as successor to the British Transport Docks Board, is a body corporate with statutory powers to manage harbours and to provide port facilities. It is the competent authority for the Humber Ports of Grimsby, Immingham, Hull and Goole. As such authority it has a duty to provide pilotage services. It has power to authorise such persons to act as pilots as it considers are suitably qualified to do so. An authorised pilot may either be a self-employed person or an employee of a competent harbour authority. If the authorised pilot is self-employed, as is the case here, ABP has power to make arrangements for the provision of services of authorised pilots for the Humber Pilotage Area under contracts for services.[12]All the pilots for the Humber Ports area are self employed, a status now recognised by the Inland Revenue, which initially contended in an earlier dispute with the pilots that they were employees of either Humber Pilots Limited or of ABP. The arrangements made by ABP take the form of an agreement made on 9 October 1991 between ABP and a co-operative registered under the Industrial and Provident Societies Act 1965 as a Friendly Society limited by shares, then called Spurn Pilots Limited, now called Humber Pilots Limited (HPL). All the pilots in the Humber Pilotage Area are members of HPL, which acts as their collective voice, though not as their employer. They agree with HPL to provide their services in accordance with the Secondary Rules of HPL and in accordance with the written agreement between ABP and HPL.[13]The origins of the present dispute can be traced to April 2001 when HPL gave notice to ABP to terminate the written agreement of 9 October 1991. The pilots are dissatisfied with their working conditions. ABP accepted the termination of the agreement, intending to move in January 2002 to a system of employing pilots directly. None of the self employed pilots has applied to be employed by ABP. They wish to retain their self employed status. ABP intends to terminate their authorisation in January 2002. The pilots are members of TGWU. Attempts at negotiations with ABP failed. On 9 October 2001 TGWU balloted the pilots. They voted that they were prepared to take part in strike action in the dispute with ABP. The strike action was due to start on 6 November 2001 and to last until 4 December 2001. In those circumstances ABP instituted these proceedings and urgently applied for an interim injunction.[14]ABP alleged, and the judge accepted, that the strike call by TGWU was a threat to induce a breach by HPL of its written agreement with ABP by the unlawful means of inducing its members not to perform their contract with HPL to provide services. ABP also alleged, and the judge accepted, that TGWU had full knowledge of the written agreement between ABP and HPL and made the strike call with full knowledge of the consequence of bringing the Humber to a halt.[15]The judge rejected TGWU’s defence that this is a “trade dispute” in which TGWU enjoys immunity from the torts for which it is sued by ABP. He rejected the contention that the terms and conditions of the authorisation of pilots by ABP constituted a personal contract between the pilots and ABP sufficient to bring them within the terms of section 296(1)(b).[16]The judge held “16… It is clear to me that section 296 defines worker clearly and that the pilots do not come within that definition. Even if they were held to be “workers” I do not see how they can bring themselves within the terms of section 296(1)(b) of “undertaking to perform personally” work for ABP. The terms and conditions are the sort of matters one would expect to accompany the authorisation just as e.g. a self employed barrister on being called to the Bar is bound by the rules and Code of Conduct of his profession. I accept Mr Pardoe’s submission that the pilots are self employed not simply in the eyes of the Revenue but in such manner as to be outside the terms of section 296....”[17]The judge considered various documents, including the written agreement between HPL and ABP, the Working Rules and the Secondary Rules of HPL and the statutory background to ABP’s duty to authorise pilots under the Pilotage Act 1987. He concluded :
“20…..ABP’s duty of authorising pilots under section 3(1) of the Pilotage Act is non-delegable (see section 11). It is part of its function (again non-delegable) under section 2 (1). Those provisions are geared in the Act to ensuring that the harbour authority provides properly authorised pilots to ships requiring them. The arrangements for such provision and the terms and conditions of the authorisation are consistent with them and with the status of the pilot as an independent self employed professional providing when called on through the arrangements between ABP and HPL services of piloting to ship owners. The authorisation is granted pursuant to the statutory duties of ABP as the harbour authority and constitutes no contract between the authorised pilot and ABP as such authority. Furthermore and most importantly I accept that the terms and conditions of the authorisation impose no obligation on the authorised pilot to do or perform personally any work or services for ABP. ”
[18]TGWU submits that the judge’s reasons for rejecting the statutory immunity claimed by it are fundamentally flawed. They are based on a faulty analysis of the nature of the legal relationship between the individual pilots and ABP which lies at the heart of this appeal. The resolution of that issue turns on a close examination of the circumstances and terms of ABP’s authorisation of the individual pilots. Authorisation of Pilots[19]Mr Pardoe QC, on behalf of ABP, stressed the statutory framework of the Pilotage Act relating to the provision of pilotage services to ship owners. He referred to the statutory origins of ABP under the Transport Acts 1962 and 1981(Schedule 3) and to its powers to operate harbours and provide port facilities. He referred to the provisions of the Pilotage Act 1987 under which ABP is the competent harbour authority for the Humber Ports entrusted with duties and equipped with the powers as set out, in particular, in sections 2,3,4 and 11 of the 1987 Act. Under section 11 ABP is permitted to arrange for the provision of the services of self-employed authorised pilots in the area to be exercised on its behalf by such other persons as it thinks fit. In this case ABP had arranged for the provision of the services of self employed authorised pilots to ship owners to be exercised on its behalf by HPL .The written contract of 9 October 1991 between ABP and HPL was an example of an appropriate arrangement by ABP for the provision of the services of authorised pilots in its area to be exercised on its behalf by HPL. Such an arrangement did not, however, bring any self employed authorised pilot into any contractual relationship with ABP. The making of that arrangement was simply a proper exercise by ABP by its statutory functions under section 4 of the 1987 Act. Nothing done by ABP gave rise to any contractual obligation in the individual pilot to do or perform personally any work or services for ABP.[20]Mr Pardoe cited the decision of Clarke J in Oceangas (Gibraltar) Limited –v- Port of London Authority ( The Cavendish) (Admiralty Court) [1993] 2 Ll Reports at 292 at 298 that “..the purport and effect of section 2 of the 1987 Act was not to impose duties upon competent authorities to pilot ships but to require them to supply properly authorised pilots for ships.”[21]Mr Pardoe pointed out that, as held by Clarke J at p. 301 in The Cavendish , even where an authorised pilot was employed under a contract of employment by the harbour authority, he ceased to be so when actually piloting a vessel. Whilst engaged in performing his services the authorised pilot is exclusively the servant of the shipowner for all purposes. A fortiori, he submitted, a self employed authorised pilot cannot be said to enter into any contract with the harbour authority merely because he performs piloting services for ship owners pursuant to arrangements made by the harbour authority to supply properly authorised pilots for ships. Still less can it be said that a self-employed authorised pilot is in a contract with ABP under which he “undertakes to do or perform personally any work or services for [ABP]”.[22]In brief, ABP’s position is that the terms and conditions of authorisation of a Humber pilot by ABP are made in performance of statutory duties relating to the authorisation of pilots; that they do not constitute any contract between an authorised pilot and ABP; that, even if there is a contract with ABP, it is certainly not one under which the pilot accepts an obligation to do work or perform services personally for ABP; that ABP’s contract is with HPL to secure the provision of pilotage services by it to shipowners requiring piloting; and that it is for HPL, not for ABP, to ensure that a pilot of requisite qualification is available for that purpose.[23]In my judgment, the issue whether there is a contract between the individual pilots and ABP and, if so, whether it is a contract of a kind falling within section 296(1)(b) of TULRA cannot be determined solely by reference to the statutory provisions under which ABP operates as the competent harbour authority with powers of authorisation. Statutory duties and powers can co-exist with contractual rights and obligations. It is true that the duty on ABP to provide pilotage services is imposed by statute and that the power to authorise pilots is conferred by statute. But neither of those facts precludes the existence of a contractual relationship between a pilot and ABP. That this is clearly so appears from those situations in which the harbour authority itself employs a pilot under a contract of employment. It cannot be said that, merely because the harbour authority is discharging statutory duties and exercising statutory powers, there is no contractual relationship between it and its employees. There is nothing in the statutory provisions prohibiting the use of self employed pilots under contracts for services. On the contrary, it is expressly provided for in section 4(1) of the 1987 Act that “…..a competent harbour authority may make such arrangements as it considers appropriate for the provision of the services of authorised pilots in the area in relation to which its duty under section 2(1) is exercisable (whether under a contract of employment or a contract for services).”[24]Whether or not there is a contract and, if so, whether the contract falls within section 296(1)(b) of TULRA must depend on the analysis of the circumstances in which, and the terms and conditions on which, ABP grants authorisations to the pilots. On this part of the case the court was taken through the detail of the authorisation documents issued by ABP. The contractual language in which they are couched, the nature of the obligations undertaken by the pilots to ABP and the extent of the ultimate control exercised by ABP over the activities of the pilots are all consistent with the existence of a contract between an authorised pilot and ABP. Although the form of “ Pilot’s Authorisation “ is brief and uninformative, the conditions of authorisation attached are critical. The document headed “Conditions of Authorisation” states “The Authorisation of a Pilot for the Humber Pilotage Area (or any part thereof) is subject to a Pilot accepting and abiding by the Terms and Conditions attached hereto.”[25]There are set out in a separate document the “Terms and Conditions on which an offer of authorisation is made”. The document continues “An applicant to be authorised as a pilot within the Humber Area shall agree to be bound by the following terms and conditions:”[26]The language of offer, acceptance and agreement to terms and conditions used in ABP’s own documents evinces a clear intention on the part of ABP to enter into contractual relations with a pilot authorised by it. I am unable to agree with Hunt J’s conclusion that there was no contract between a pilot and ABP. No pilot could operate in the Humber Area without an authorisation with ABP and all authorisations of ABP were conditional on acceptance of the offer of authorisation subject to the express terms and conditions specified by it. A contract is concluded by the acceptance of the offer.[27]The individual terms and conditions both reinforce the existence of a contract and illustrate the extent of the control exercised by ABP over pilots and the corresponding obligations of the pilots to ABP. Thus, paragraph 1 of the terms and conditions provided that the pilot should be “under the supervision of the Pilotage Operations Manager or his deputy and, apart from the actual handling of vessels, he shall carry out the proper directions of the Pilotage Operations Manager or his deputies”.[28]The conditions provide in paragraph 4 that, when on duty, the pilot should wear a prescribed uniform and in paragraph 5 that he should reside only in a location approved by ABP as being suitable to enable him to attend to his duties. Paragraph 6 provides that “ save as may in exceptional circumstances be decided by ABP, he shall, so far as is practicable, take his turn for the pilotage of vessels and other duly designed pilotage duties in regular rotation and according to his class.”[29]Permission of the Pilotage Operations Manager is required for a pilot to absent himself from duty (paragraph 9) and he is required to inform the Pilotage Operations Manager or his deputy of an inability to discharge his duties through sickness or accident. Under paragraph 16 a pilot must not “ so conduct himself when on duty as to bring ABP or the pilotage service into disrepute.” Paragraph 17 provides that “when on duty he shall comply with the reasonable and lawful instructions of ABP”. Paragraph 18 provides that pilots shall be regarded as on duty from the time when he reports at the muster point until the time when he returns to the muster point.[30]Further, there are attached to the terms and conditions a Schedule of Disciplinary Procedures which may be operated by ABP in respect of a pilot, which may lead to the suspension, variation or revocation of the authorisation.[31]Other documents confirm or, at the very least, are consistent with the conclusion that the cumulative effect of the terms and conditions is to create a contract between ABP and the pilot, under which the pilot undertakes to perform services personally for ABP. For example, under the Terms of Reference of the Pilotage Operations Manager of ABP, who is responsible for the operational management of the Pilotage Service, the Pilotage Operations Manager undertakes “ the supervision of all pilots authorised by ABP the Humber Pilotage Area and shall ensure that all such pilots abide by the terms and conditions of their authorisation.”[32]One of the documents in evidence is a letter written by Captain Hames, the Harbour Master with ABP, to an individual pilot informing him that he had breached paragraph 9 of his authorisation in removing himself from the turn list without the express permission of the Harbour Master. That particular case led to disciplinary proceedings in which it was found by the Disciplinary Panel that the pilot had absented himself from the Pilots Turn Roster to perform a duty that he was authorised to carry out and a fine of £100 payable to ABP was imposed.[33]Other contractual documents entered into by ABP and the pilots support the contractual character of the agreed terms and conditions of the authorisations granted by ABP. Under the written agreement on 9 October 1991 HPL undertook to provide a pilot for any and every vessel compelled by law to require one within any part of the Humber Pilotage Area. By clause 2 (a) ABP agreed with HPL that it would, in exercise of its powers under section 3 of the Pilotage Act, authorise to act as pilots in the Humber Pilotage Area “the number of persons determined (in accordance with its duties under section 2 of the Act ) to be required to enable ABP to provide the pilotage services considered necessary within the Humber Pilotage Area.”[34]By clause 2(d) all pilots authorised by ABP “must forthwith become members of [HPL].” ABP is given the right to determine the agreement in the event that HPL refused to admit it to its membership a pilot authorised by ABP. Under the payment provisions ABP collect from the ship owners or their agents the charges due for all acts of pilotage completed by HPL members, as levied by ABP under section 10 of the Act, and remit such charges to HPL as are agreed in advance or otherwise determined under the provisions of the agreement. Clause 3 expressly provided that HPL should receive “such monies as agents for its members and distribute such monies to its members in accordance with the Secondary Rules of [HPL] Clause 7 of the written agreement provided that the manner in which the pilot perform their duties “shall be laid down in Working Rules devised by [HPL], the provisions of which shall be subject to the approval of ABP or its nominee, whose approval shall also be required for any amendments thereto and who reserves the right to require the said Working Rules to be revised should it be considered necessary or desirable to do so.”[35]Clause 9 provided that ABP or its nominee should supervise the pilotage service. Under clause 14 a component of the charges collected by ABP was to be the contributions payable to the Pilots’ National Pension Fund, rather in the manner of an employer. The First Schedule to the agreement contained the Secondary Rules, which constituted a contract between each member of HPL and HPL. The Secondary Rules make provision for such matters as the distribution of sums received by HPL on behalf of the members for sickness and accident and so on. Schedule 3 contained the Working Rules established to maintain a turn list as required and to produce a fair and equitable basis for sharing the work of the pilots.[36]In my judgment, the clear and cumulative effect of the terms and conditions of the authorisations agreed between ABP and each pilot, as reinforced by the other documents, is that there are contracts between ABP and the individual pilots which fall within the provisions of section 296(1)(b) of TULRA. The pilots have undertaken, as a condition of authorisation, to perform services for ABP by what they have agreed to do in the terms and conditions. The obligations undertaken by them to ABP are in respect of the provision of pilotage services by ABP to the shipowners. It is irrelevant to the characterisation of this contract that the pilots are exclusive employees of the shipowner while they are on board performing the pilotage services and that they also have a contractual relationship with their own co-operative HPL, which enables HPL to undertake its contractual obligations to ABP in the agreement of 9 October 1991 in relation to the services of the pilots. It is not a requirement of a contract of the kind referred to in section 296(1)(b) that the services to be personally performed for ABP should be exclusively performed for it. The pilots, like other self-employed persons, may make multiple contracts in respect of the performance of their personal services to different people and/or at different stages within an overall process of the provision of services to the ultimate users of those services.[37]I conclude that Hunt J was wrong in holding that(a) there was no contract between ABP and the individual pilots and(b) that any contract that might exist did not fall within section 296(1)(b). It follows that the individual pilots are “ workers” within the meaning of section 244(1) and that ABP is “ their employer” within the meaning of that provision. The dispute clearly relates wholly or mainly to the terms and conditions of employment in the extended sense defined in subsection (5) of section 244. It concerns dissatisfaction with existing working conditions. It also relates to the termination of each pilot’s authorisation by ABP to be effective in January 2002. This is accordingly a “trade dispute” within the meaning of section 244. TGWU is entitled to statutory immunity under section 219 from the claims made by ABP. The appeal should be allowed and the interim injunction discharged. The Ballot[38]On the court’s announcement of its decision to allow the appeal an application was made on behalf of the TGWU under section 234(2) of TULRA. The section relates to the period after which the ballot ceases to be effective and provides that “(1) Subject to the following provisions, a ballot ceases to be effective for the purposes of section 233(3)(b) in relation to Industrial action by members of a trade union at the end of the period, beginning with the date of the ballot- (a) of four weeks, or (b)…………. (2) Where for the whole or part of that period the calling or organising of industrial action is prohibited – (a) by virtue of a court order which subsequently lapses or discharged, recalled or set aside,or (b)… the trade union may apply to the court for an order that the period during which the prohibition had effect shall not count towards the period referred to in subsection (1).”[39]It was pointed out that, in the absence of any exercise of discretion by the court under section 234(2), strike action under the existing ballot could only take place on 3 and 4 December and thereafter it would be necessary to have a fresh ballot. The position was that the ballot held on 16 October ceased to be affective on 12 November. On 18 October a notice of strike action had been given for the period 6 November to 4 December, but the injunction granted on 1 November, which has now been discharged, had constituted a prohibition for that 12 day period on the calling or organising of industrial action. TGWU was therefore entitled to apply to the court for an order that the 12 day period did not count towards the period of the effectiveness of the ballot referred to in section 234(1). If such an order were granted TGWU would have a further 12 days after 4 December in which it would be at liberty to give notice of strike action for an extended period. The extension of that period was crucial, as it needed to give 7 days notice of strike action.[40]This application was strenuously opposed by ABP on two grounds. The first ground was that there had been 10 days delay on the part of TGWU in pursuing the application for permission to appeal. That delay should have the effect of reducing the period which should not count to a period of less than 7 days. That would not be sufficiently long to enable the service of a fresh strike notice by TGWU. It would not serve any useful purpose for the court to exercise its discretion for such lesser period under section 234(2). It was pointed out that TGWU knew on 5 November the reasons for Hunt J’s decision to grant an injunction. It had immediately applied for and been refused permission to appeal. It was open to it at that point to make an urgent application to the Court of Appeal for permission. But it did not do so until 16 November, that is 10 days later. By reason of that delay the court should not exercise its discretion to disregard that period. There was no explanation for the delay. In the context of a trade dispute expedition was important.[41]The second ground for opposing the application was based on section 234(4) which provides that “The court shall not make an order if it appears to the court –(a) that the result of the ballot no longer represents the views of the union members concerned, or(b) that an event is likely to occur as a result of which those members would vote against industrial action if another ballot were to be held.”[42]In support of that application the witness statement made by Captain Hames on behalf of ABP on 29 October 2001 was referred to as indicating that an event was likely to occur as a result of which the members of the union would vote against industrial action if another ballot were to be held. The event was the likelihood of non-HPL pilots being trained and employed by ABP in place of the HPL members.[43]TGWU’s application was granted on the basis that there had been no culpable delay on its part in the pursuit of the application for permission to appeal which should disentitle it to the exercise of the court’s discretion in respect of the period of the effectiveness of the ballot for which the injunction was in force i.e. between 1 and 12 November. The court was informed by Mr Allen, on instructions, of the circumstances in which the application for permission to the court had not been pursued to the Court of Appeal immediately after the delivery of the oral reasons on 5 November. The parties had been informed by the judge that a typed version of his judgment would be handed down. It was decided to wait until that was available. It became available on 9 November. It was reasonable to wait until the handing down of the promised typed judgment, so that there could be compliance with the requirements of the Court of Appeal that a skeleton argument should be submitted with the paper application. That was done on 16 November. The intervening time was used for the preparation of the documentation. As for the second ground the evidence in this case does not satisfy the court that an event is likely to occur as a result of which those members of TGWU would vote against industrial action, if another ballot were to be held. Leave to Appeal[44]Mr Pardoe made an application for leave to appeal to the House of Lords on the ground that the case raises a point of general importance under the relevant provisions of TULRA and that the impact of the decision has an important effect of the operation of ports. This was opposed. Mr Allen pointed out that this was an interlocutory injunction and that it was rare to grant permission to appeal to the House of Lords in such cases. The court was not satisfied that that would be sufficient reason for refusing leave, since most cases of trade disputes never go to trial and the interlocutory injunction has final effect. The court did, however, conclude that leave should not be granted in this case, as it turned less on a disputed interpretation of section 296(1)(b) than on its application to the terms of the particular contract between ABP and the pilots. In those circumstances it is not a fit case for leave to be granted by this court, though it is, of course, open to ABP to petition the House for leave. MR JUSTICE WALL: – I agree.

LORD JUSTICE LONGMORE:

[45]This appeal turns on the definition of “worker” in section 296 of the Trade Union and Labour Relations (Consolidation) Act 1992 as “an individual who works, or normally works or seeks to work-(a) under a contract of employment, or(b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his . . . .”[46]This definition for the purposes of the concept of a “trade dispute” goes back, at least, as far as section 30 of the Trade Union and Labour Relations Act 1974 and appears to have its origin in the Industrial Courts Act 1919, see Chitty, Contracts , 28th ed vol 2 para 39-008.[47]The parties agree that the Humber pilots do not work under a contract of employment but disagree whether the pilots undertake personally to perform services for Associated British Ports (“ABP”) under any other contract. Mr Pardoe QC submitted that the pilots had no contract with ABP; if that was wrong, he submitted that it was not a contract personally to perform services for ABP.[48]I agree with Mummery LJ that the Humberside pilots have a contract with ABP. Their authorisation as pilots is on “Terms and Conditions on which an offer of authorisation is made”. When a pilot accepts those terms, he makes a contract with ABP on those terms. The fact that he also makes a contract with HPL and is the servant of the shipowner while on board any vessel which he pilots does not, in any way, detract from that conclusion. This is supported by the fact that section 4(1) of the Pilotage Act 1987 contemplates that the harbour authority’s arrangements for the provision of authorised pilots in its area will, in fact be “under a contract of employment or a contract for services”.[49]A consideration of the terms and conditions of that contract leads me to the conclusion that, in that contract, the pilot does undertake “to . . . . perform personally . . . . .services for” ABP. I have in mind particularly the following terms:-(1) clause 1 that the pilot is to be under the supervision of the Pilotage Operations Manager, viz the Harbour Master (Humber), or his deputy and carry out his or their proper directions;(2) clause 4 that the pilot wear a specific uniform;(3) clause 6 that the pilot shall, save in exceptional circumstances to be decided by ABP, so far as practicable take his turn for pilotage in regular rotation and according to his class;(4) clauses 8 and 16 that the pilot shall (1) conduct himself respectfully towards any person who requires his services and is not to use obscene or improper language to such persons or to ABP or to another pilot and (2) not so conduct himself as to bring ABP or the pilotage service into disrepute;(5) clause 10 that, if a pilot is unable to discharge his duties through sickness or accident, he is to inform the Pilotage Operations Manager or his deputy and furnish a doctor’s certificate within 48 hours;(6) clause 11 requires a pilot to attend any meeting to which he may be summoned by the Pilotage Operations Manager;(7) clause 12 that a pilot must not fail to join a ship to which he has been appointed without a valid reason and that he is not to be intoxicated when he is on duty or required for duty;(8) clauses 13 and 14 require the pilot to report fully and truthfully on any accident happening to or caused by a vessel while in his charge and to report any wreck or alteration to the natural configuration of the estuary;(9) clauses 17 and 18 require that a pilot comply with ABP’s reasonable and lawful instructions and that he is to be regarded as on duty from the time he reports at the muster point until he returns to that point;(10) clause 20 imposes the disciplinary procedure in the schedule attached.[50]ABP has taken the trouble to require that the Humberside pilots be subject to all these conditions and, whether or not any one condition would be enough to render a pilot a worker, I have no doubt that the combination of the conditions is an undertaking personally to perform services for ABP. There can be no question of a pilot delegating any of the duties he assumes to ABP under the terms of his authorisation and his obligations, to my mind, constitute services he agrees to render to ABP. The fact that he may also assume duties to HPL and, indeed, to shipowners can make no difference to that conclusion.[51]For these short reasons, therefore, I agree with Mummery LJ that this appeal should be allowed. I also agree that the Union’s application that the period 1 – 12 November should not count towards the period of the effectiveness of the ballot should be granted.

Order

Appeal allowed with the costs of appeal in the sum of £15,454.79 to be paid within 7 days. Costs below to be paid by ABP to TGWU to be subject to detailed assessment if it is not agreed. (order does not form part of the approved judgment)

Cited in 1 later judgment