The National Union Of Mineworkers (Yorkshire Area) v Millward [1994] UKEAT 535_94_1111

EAT

The National Union Of Mineworkers (Yorkshire Area) v Millward

[1994] UKEAT 535_94_1111 · 1994-11-11

MR JUSTICE MUMMERY (PRESIDENT) When a trade union proposes to transfer its engagements to another trade union and when two or more trade unions propose to amalgamate and become one trade union, a resolution must be passed by the required majority of members in ballot. Entitlement to vote in the ballot must be accorded equally "to all members of the trade union".

The question on this appeal is whether the Certification Officer erred in law when he decided that the "limited members" of the National Union of Mineworkers (Yorkshire Area) were members of that Union for the purpose of the transfer ballot. The Certification Officer made the following declaration which is the subject of this appeal.

"In the ballot of members of the National Union of Mineworkers (Yorkshire Area) for approval of a resolution proposing the transfer of its engagements to the National Union of Mineworkers, not all members of the Yorkshire Area were given an opportunity to vote as required by section 100B of the Trade Union and Labour Relations (Consolidation) Act 1992."

An appeal lies to this Appeal Tribunal on any question of law arising from that decision: see section 103 of the 1992 Act.

The background facts

The relevant factual background to the appeal may be summarised as follows:

(1) The NUM (Yorkshire Area) ("the Union") is a Trade Union in its own right with its own Rule Book. It forms a constituent part of the National Union of Mineworkers ("the NUM").

(2) Under its rules the Union has five types of member - full members (8,109), limited members (2,556), retired members and widows (58,582) and honorary and associate members (included in a figure of 1,269 for "Others").

(3) On 7th February 1994, the Certification Officer approved a Notice to Members and an Instrument of Transfer of Engagements. Between 8th March and 18th March 1994 a ballot seeking approval of the transfer to the NUM was carried out for the Union by the official scrutineer.

(4) In the ballot 7,260 ballot papers were issued. The result was that 2,897 votes were cast in favour of the transfer terms and 374 votes against.

(5) On 30th March 1994, the Certification Officer received an application for registration of the Instrument of transfer. He provisionally agreed the 10th May as the registration date, provided that no complaint was outstanding at that date. Registration was, however, delayed because complaints were received and not determined by that date.

(6) The complainant, Mr Millward (an officer of the Maltby Branch of the Union), alleged that

(a) non-members had been allowed to vote in the ballot;

(b) members were subject to interference in the exercise of their vote; and

Complaints (a) and (b) were dismissed. Mr Millward does not appeal against those decisions.

Complaint (c) was upheld. The Union accepted that limited members had not been accorded a vote in the ballot, but argued that they were not entitled to vote because they were not "members" within the meaning of S.100B of the 1992 Act which provided, in relation to ballots on transfer of engagements and amalgamation of unions that

"Entitlement to vote in the ballot shall be accorded equally to all members of the trade union."

(7) After a hearing on 17th May 1994 the Certification Officer rejected the Union's contentions in a decision dated 19th May. He published Reasons on 27th May explaining why, in his view, limited members of the union were members for the purposes of S.100B. He made a declaration that he would not entertain an application for the registration of the Instrument of Transfer until a fresh ballot of the Union members, including limited members, had been conducted and approved the proposal.

(8) By Notice of Appeal received on 9th June 1994, the Union appealed against the decision on the principal ground that the Certification Officer had applied the wrong test in law for determining whether a person should be considered a member of a Union for the purposes of S.100B.

(9) Pending the hearing of the appeal, the Union held a fresh ballot in which limited members were given the opportunity to vote. The resolution was passed. The Union nevertheless wishes to pursue the appeal.

The hearing of the appeal

At the hearing of the appeal several preliminary and procedural matters arose which should be explained before we deal with the substantive arguments.

(1) Jurisdiction

Two points relevant to jurisdiction arose -

(a) Academic point We raised the question with Mr John Hendy QC, who appeared for the Union, that the appeal might now be considered academic since, whichever way it was decided, it would not affect the dispute whether there was a valid first ballot approving the transfer of engagements. Two ballots had now been held, the first without a vote for limited members, the second with a vote for them. At least one of the ballots was valid. The result of each ballot was approval of the transfer. So why pursue the appeal?

We were persuaded by Mr Hendy that there are good reasons why we should decide the point raised on the appeal. The Union has a direct continuing interest in a decision on the correctness of the Certification Officer's ruling. The Certification Officer made a declaration concerning the membership of the Union. If that declaration was erroneous in law, the Union should be allowed the opportunity, by way of appeal, to have the correct position declared. Further, the question is bound to arise again, because there are proposals for the transfer of engagements of other unions, with a similar composition of members, to the NUM. A ruling on this appeal would, subject to further appeals to higher courts, settle the question of voting rights on the ballot both for the Union and for the Certification Officer.

(b) Question of law Although Mr Millward has taken no part in the appeal, he wrote a letter to the Appeal Tribunal which appears to doubt whether the Union's appeal raises a question of law.

Mr Hendy QC submitted (and we agree) that the appeal from the Certification Officer's decision does raise a question of law, both on the correct interpretation of S.100B, in the context of the purpose, scheme and provisions of the 1992 Act, and on the correct construction of the Union's rules which define contractually the rights and obligations of the various categories of union members.

(2) Representation As the issue on the appeal is of general importance to Trade Unions, we expressed concern that, as Mr Millward decided to take no part in the appeal, we would only hear argument from the Union. The absence of a contrary argument might increase the difficulty of decision and the risk of error and undermine the authority of the decision as a precedent. Before the hearing took place it was suggested by the legal officer for the Certification Officer that we might consider a request for the appointment of an amicus. It was decided that it would be preferable to wait and see what the position was at the conclusion of the Union's submissions. It was not appropriate to ask the Certification Officer, who was present throughout the hearing as an observer, to make submissions himself.

As appears from the decision in the Certification Officer v. Squibb UK Staff Association

[1979] IRLR 75

at 77, 78 the Certification Officer occupies a judicial position. He is impartial and independent and should not be called upon to justify his adjudication (for example, by interrogation in the witness box, or to oppose the appeal as if a party). As also indicated in that decision, situations will arise in which the Appeal Tribunal requires the assistance of an amicus for the satisfactory resolution of an appeal and to safeguard the public interest. In this case we have decided that an amicus is unnecessary. The Certification Officer set out, in a detailed reasoned decision, the arguments for the view that a limited member of a union is not a member for the purposes of S.100B. Mr Hendy, with the assistance of full written submissions from himself and his industrious junior, has set out a comprehensive, balanced presentation which we have found invaluable.

In our view, no other evidence or factual findings are required. The decision turns on the construction of the relevant provisions of the 1992 Act and the Union Rules. We have examined both in detail in the course of the Union's submissions.

(3) Legislative history In the course of argument, we asked Mr Hendy whether, in reliance on the House of Lords decision in Pepper v. Hart , he intended to place before the Tribunal material relevant to the legislative history of the statutory provisions. He explained that he did not have such material to hand, but accepted that, if we were of the view that the reference to "all members of the union" in S.100B was ambiguous, the legislative history and preparatory materials might be admissible to help resolve the ambiguity.

We proposed, and Mr Hendy agreed, that research should be undertaken immediately and that the Appeal Tribunal would be supplied with any relevant material within 3 weeks of concluding the hearing. We proceeded to hear the appeal on that basis and on the understanding that, depending on the material unearthed in researches, Mr Hendy might request, or the Appeal Tribunal might require, further oral submissions and, if thought appropriate, the assistance of an amicus. On 6th December 1994 the Appeal Tribunal was informed in a Note from Counsel that researches into Hansard, Green and White Papers, journals and text books and the report of the 1968 Donovan Commission failed to reveal any material relevant to the interpretation of S.100B.

The 1992 Act

We have been referred in detail to the provisions of the 1992 Act, as amended, which might be relevant to the determination of the scope of the reference to all the members of the trade union in S.100B.

The following points on the legislation should be noted.

(1) The interpretation provisions in sections 295 to 298 and the Index of defined expressions in S.299 contain no definition of or reference to the expression "members" of a trade union.

(2) There is, however, a definition of a trade union, for the purposes of the 1992 Act, in S.1. For present purposes it is relevant to note that the essential elements of the definition refer to the form, composition and principal purposes of an organisation. The legislative characteristics of a trade union are -

(a) It is "an organisation" which may be temporary or permanent;

(b) It consists wholly or mainly of workers of one or more descriptions (A worker means an individual who works or normally seeks to work under a contract of employment or under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract or in other employment specified in S.296(1)(c)).

(c) Its principal purposes include the regulation of relations between workers of that description or those descriptions and employers or between workers and employers' associations.

(3) In the part of the 1992 Act (Chapter IV) concerned with elections for certain positions and offices, the requirements to be satisfied include entitlement to vote being accorded equally to all members of trade unions. See S.50(1). That is, however, subject to provisions that the rules of the union may exclude entitlement to vote in the case of all members who belong to certain classes or to a class falling within one of certain specified classes ie, members who are not in employment; members who are in arrears in respect of any subscription or contribution due to the union; and members who are apprentices, trainees or students or new members of the union. See S.50(2).

(4) The 1992 Act, as amended, confers in S.174 a right to membership of a trade union. An individual shall not be excluded or expelled from a trade union, unless the exclusion or expulsion is permitted by the section (S.174(1)). Exclusion or expulsion is permitted only if certain conditions are satisfied: for example, that the individual does not satisfy, or no longer satisfies, an enforceable membership requirement contained in the rules of the union or because he does not qualify, or no longer qualifies, for membership of the union or because, in the case of a union whose purpose is the regulation of relations between its members and one particular member or a number of particular employers who are associated, he is not, or is no longer, employed by that employer or one of those employers. Section 174(3) identifies the criteria for determining whether a requirement in relation to membership of a union is "enforceable". The criteria are particular kinds of employment, particular occupational descriptions and possession of specified qualifications or work experience.

The Rules

The Rules of the Union determine contractually who are and who are not members of the Union and what are the rights and obligations of the members.

The following provisions of the Rules, as revised, are relevant to membership.

(1) Rule 1(b) deals with the constitution of the Union and provides that it

"shall consist of workers (male and female) employed or connected with the coal mining industry and ancillary undertakings and such other industries and undertakings as the Conference of the National Union hereinafter in these Rules referred to as" Conference "shall from time to time determine in Yorkshire and adjacent counties ..."

(2) The objects of the Union are stated in Rule 2:

(a) To act as a Trade Union

(b) ...

(d) To support and put into effect the objects of the National Union of Mineworkers insofar as the members of the Union are affected.

(3) Membership is dealt with in Rule 4 -

"It shall be the duty of every member to comply with the Rules, policy and objects of the Union and with all directions thereunder. (a) Full Membership

The following categories of persons are eligible for full membership of the Union and in these rules the expression "member" means a full member unless otherwise stated. (i) All persons employed in the coal mining industry of Great Britain and its ancillary undertakings

(ii) All persons employed in those sections of Energy Industries and undertakings specified by Conference

(iii) All persons employed in such other industries and undertakings (or sections thereof) specified by Conference

(iv) All persons employed by the Union including full time National or Area Officials/Agents

(v) All members who become Members of Parliament or of the European Parliament

(vi) With the express permission of the Area Council all members formerly employed in any of the above categories and who are temporarily engaged in undertakings or institutions in which the Union does not organise and who continue to pay full contributions, and

(vii) All members whose employment has been terminated by the employer, either by enforced redundancy or where the Union considers a member has been victimised by being dismissed, as long as the member continues to be unemployed.

(b) Honorary Membership

The honorary members shall be all those persons who in the opinion of the Area Council are suitable to be honorary members and who are admitted to honorary membership by the Area Council. The Area Council may terminate in its absolute discretion the membership of any honorary member at any time without assigning any reason therefor.

(c) Limited Membership

Any person having been a Full member of the Union for not less than 12 months, upon ceasing to be eligible for full membership and whilst not engaged in full time employment in respect of which that person would be entitled to apply for membership of another TUC affiliated trade union, and whilst under the age of 60 years, shall be eligible for admission to Limited Membership of the Union.

(d) Retired Membership

The following categories of persons shall be admitted as Retired Members

(i) All former Full Members of the Union upon retiring at normal retiring age

(ii) All former Full Members of the Union retiring early on the grounds of ill health, incapacity or sickness.

(iii) All former Full Members of the Union upon retiring early under the Early Voluntary Retirement Scheme

(iv) All former Limited Members of the Union upon attaining the age of 60 years

(v) All spouses of deceased former full Retired or Limited Members of the Union. (e) Associate Membership

The Associate Members of the Union shall be all those persons who in the opinion of the Area Council are suitable to be Associate Members and who are admitted to such membership by Area Council.

Area Council shall be entitled in its absolute discretion to terminate the membership of an Associate Member at any time without giving reason therefor.

Associate Membership shall be conferred on an annual basis upon payment of the appropriate contribution from year to year.

...

(k) Membership

The following shall be the members:-

(i) All members of the National Union who are eligible to be Full Members

(ii) All Honorary Members admitted by the Area Council

(iii) All Limited Members admitted by the Area Council

(iv) All Retired Members admitted by the Area Council

(v) All Associate Members admitted by the Area Council (l) Eligibility (i) A person ceasing to fulfil the qualifications for his or her category of membership shall cease to be a member unless given dispensation by the Area Council

(ii) An Honorary Member shall not be eligible to vote, receive benefit or hold office

(iii) A Limited Member shall not be eligible to vote or hold office in the Union, but shall whilst remaining a financial Limited Member be entitled to seek the assistance of the Union in obtaining compensation for injury, ill health, disabilities or death arising out of or connected with the Limited Member's former employment whilst having been in Full Membership of the Union and be entitled to act as an accredited representative of the Union to any body to which the Union is affiliated.

Limited Members may attend meetings of the branch but not exercise any vote thereat

Limited Members may also attend any delegation or meeting where properly invited and may exercise a vote with the prior consent of the Area Council.

Limited Members shall be entitled to be members of and subscribe to such schemes for the provision of provident and welfare benefits as the Union may provide, subject to the rules thereof.

Area Council may terminate the membership of any Limited member at any time without assigning any reason therefor.

(iv) [Retired Members are in a similar position as regards voting and so on as Limited Members and it is unnecessary to repeat the provisions relating to them]

(v) Associate Members shall not be eligible to vote, receive benefit, attend meetings (except by specific invitation) nor hold any office in the Union

(vi) For the avoidance of doubt Limited and Retired Members being persons who are no longer in employment shall not retain any right to vote in any election or in any Area ballot.

(4) In the provisions regarding contributions and levies in Rule 5 it is provided that

"(l) Any class of member decided upon by Area Council shall be exempt from paying contributions or special levies during a specified period"

...

"(o) All Limited Members of the Union shall be obliged to pay or otherwise cause to be paid a weekly contribution to the Union of a sum equal to one half the total contribution paid by a Full Member (calculated in Rule 5(n) above."

...

"(t) The provisions relating to financial membership of the Union contained in Rules 5(a) and 5(f) shall apply equally to Limited Members."

(5) Many of the other provisions in the Rules refer to "members" in a way which is clearly confined to Full Members, as provided in Rule 4(a). The only other relevant Rules are Rule 30(a) which provides that the Area General Secretary shall supply to the Branch Treasurer to provide to members, membership cards free of charge on which the contributions, levies and arrears of members are entered. It is provided in Rule 30(c) that any full financial member shall be entitled to inspect the books of the Union on reasonable notice. The grievance procedure in Rule 31 provides that "no member or person claiming under these Rules shall make any application to any court unless the procedure established by these Rules is exhausted." The Rule continues in its provisions to make a distinction between a "member" and a "person claiming under these Rules". The disciplinary procedure in Rule 32(d) provides that the Disciplinary Committee has power to consider a complaint that a member has done one or more of a number of specified acts.

The decision of the Certification Officer

The reasons given by the Certification Officer for his decision rely heavily on another decision of his( Mounsey v. NUM (Yorkshire Area ) (29th April 1994) ), and may be summarised as follows:-

(1) In the absence of a statutory definition of "members", the Union Rule Book was "another possible source of definition".

(2) The fact that a person falls within a category described as members in the Union Rule Book will not always mean that they are to be treated as a member for the purposes of the 1992 Act, though it is evidence that the Union considers those persons to be members. Equally, the fact that someone is described otherwise than as a member in the Union's Rule Book is not conclusive that he is not a member.

(3) To determine the meaning of "members" it is necessary to look elsewhere. The starting point is to consider the basis of the nature of the organisation of which membership is being claimed ie the statutory definition of a Trade Union in S.1 of the 1992 Act. That envisaged that a union may comprise a minority of members who are not workers. Persons who are not workers may sometimes be members. It was relevant to consider also the provisions of S.50 which allowed on occasion for members to be excluded from certain requirements of the 1992 Act. Those provisions showed that Parliament contemplated that "member" includes persons other than Full Members eg unemployed members, members in arrears with subscriptions and so on. Thus, if a subscriber to a union satisfies the definition of a worker or falls within one of the categories of members who can be excluded from voting, he or she is a member of the union for the purposes of the 1992 Act. Limited Members were such subscribers and should, therefore, be treated as members of the Union. Some people described as members (eg Honorary or Associate Members) may have only "de minimis" rights and duties and should not therefore be treated as members. Between that extreme and the other extreme of persons who were clearly members fall individuals who have a "tangible interest" in the Union. Whether they are members depends on the extent of that interest in the affairs of the Union by considering "the cluster of rights and duties relevant to their relationship with the Union."

(4) Limited Members, though they initially made no contribution, pay less than Full Members' contributions. They are predominantly members who had been made redundant under one of the voluntary schemes and were in effect unemployed, but were eligible to return to Full Membership if they returned to work. They are not involved in any of the voting processes of the Union. They enjoy certain membership benefits, but minimal rights to participate in the affairs of the Union. Nevertheless, they are members, because they subscribe to the Union, satisfy the definition of workers, which is central to the concept of a trade union, and are akin to unemployed members. The test of membership was to be found in the expression "the worker" in S.1 and in section 50 which "determines who clearly fall within the core members of the Union". Limited Members satisfy the core membership test. The Certification Officer rejected the "rights and duties approach" which was only put forward by the Union to counter the position of people who did not really fall in the core definition eg Honorary Members.

(5) Even on the cluster of "rights and duties test" advocated by the Union, Limited Members were still members for the purposes of the transfer ballot. This conclusion of the Certification Officer was not amplified by any further explanation or reasoning in his decision.

(6) As regards "Retired Members", that was not an issue before him and not therefore the subject of a definitive ruling. He did, however, express the view that they were generally unlikely to satisfy the test for core membership, so the issue would turn on the degree of association with the Union. Like Limited Members they had a right to services, but had no right to vote. They were distinguished from Limited Members in that they paid no subscription and were not covered by provisions for the generality of them to become Full Members. They included many (eg spouses of former members) who have never worked in the industry or been Full Members.

Conclusion

The Certification Officer was presented with a novel question of construction. He reasoned clearly and carefully to a conclusion that a Limited Member was a member of the Union for the purposes of S.100B. We are unable to agree with his decision for the following reasons:-

(1) It is important always to bear in mind the precise question for decision, namely

"Is a Limited Member of the Union entitled to vote in a ballot on a resolution to transfer the engagements of the Union?"

He is only entitled to vote if he can bring himself within S.100B as the statutory provision conferring the right to vote in such a ballot.

The scope of the section depends on its interpretation in the context of the scheme and purpose both of the group of sections relating to the transfer of engagements and amalgamations and of the 1992 Act as a whole.

(2) It is a potential source of error to pose the question too generally, such as: What is the meaning of the word "member"? Or even "Who are the members of the Union"? Or "who did Parliament intend should have entitlement to vote"? These general questions cannot be fully answered. Further, statutory interpretation is not a matter of translating words literally, with the help of a dictionary, or of searching for a fictitious collective subjective legislative intention. The position is that, in the absence of a relevant defined term or statutory set of criteria for determining membership, Parliament has chosen not to be specific on this point. It has left it to the Certification Officer, the Appeal Tribunal and the appellate courts to determine the scope of the voting provision and its application to the facts of particular cases as and when they arise. A helpful approach is to ask how the language of the section would be reasonably understood in the particular case by those to whom the section is addressed and whose affairs are intended to be affected by it.

(3) In performing the task of construing and applying the section to particular sets of facts it is important to resist the temptation to formulate and imply into the 1992 Act a non-statutory test of membership. Much of the argument before the Certification Officer was as to which test should apply: the primary test of "core membership" or the secondary test of "the cluster of rights and duties". The formulation of a test is a useful vehicle in argument for identifying relevant similarities and differences and actual and hypothetical situations. But the tests proposed in argument, however persuasive, are not in the Act and should not be allowed to infiltrate the Act and assume legislative force.

(4) The correct approach, in the search for the meaning conveyed by the statutory language and for the content of the section, is to examine the section textually and contextually.

(a) As a matter of linguistic usage "members of a trade union" is expressive of a constitutional relationship between individuals and a body or organisation to which they belong. A dictionary offers no further help.

(b) That relationship is prima facie defined by the constitution or rules of the union as the body or organisation of members. A body or organisation will usually have a constitution embodied in written rules. If it does not, its membership will have to be ascertained by other means eg, evidence of agreement implied from conduct and practice. Even if it does have written rules, the provisions of the rule book regarding membership may not be always determinative of membership for the purposes of the Act : for example, a provision that no one, save the General Secretary, shall be a member of the union for the purposes of S.100B, would not have the effect of displacing the statute, if there were individuals who, having regard to the reality and substance of their relationship with the union, should in fact be regarded as members with voting rights on a ballot for transfer of engagements. Regard must be had to the substance and content of the relationship.

(c) The relationship between members and the union is a complex of rights and duties existing between the members and the body and between the members themselves, viewed in the context of the principal purpose which the body or organisation exists to promote.

(5) The crucial point in this case is that there is more than one class of persons described as a member in the Union Rules: does section 100B include all of them or only some of them and, if so, which classes of member are included? To determine the scope of the section it is necessary to examine the relationship between each class of members and the Union and with other members. Although they all belong to, or form part of, the Union there are significant differences between the different classes of members; in particular between the Full Members, on the one hand, and the rest of the members on the other hand, as well as between the different classes of other members.

(6) In our view, a detailed consideration of the relevant Rules leads to the conclusion that only the Full Members can properly be regarded as having an entitlement to vote on questions of the transfer of engagements and amalgamations. By comparison the right of Limited Members to participate in the principal purposes of the Union is not substantial and their situation in relation to the central purpose of the Union and to the coal industry is such that the reference to "members" in S.100B cannot sensibly be understood to include them. Although they pay a subscription and are entitled to fringe benefits, they have no right to vote on decisions or stand for office and benefit only indirectly from the principal purposes of the Union.

(7) We agree with Mr Hendy that the Certification Officer erred in law in the reliance which he placed on other sections in the Act. It is fallacious to argue from S.1, as the Certification Officer did, that, as a Limited Member falls within the definition of a "worker" and the Union must comprise a majority of workers, a Limited Member who subscribes to the Union is automatically a member of it for the purpose of S.100B. The purpose of the reference to workers in S.1 is to determine whether the requirements of S.1 for the existence of a trade union are satisfied. It does not follow that because a trade union, consisting in the majority of workers, exists, that all those who are workers are members of the Union for the purposes of S.100B.

(8) We agree with Mr Hendy that the Certification Officer's argument by reference to S.50(2) is fallacious. The fact that a union is permitted to exclude unemployed members from voting on leadership elections does not affect the logically prior question of whether someone who may be excluded is or is not a member, regardless of any decision to exclude.

For all these reasons the appeal by the Union is allowed. It will be declared that Limited Members are not members of the Union for the purposes of voting on a ballot for the transfer of engagements.