BECTU v Tudor Gates (Certification Officer) [2001] UKEAT 1462_00_1004

EAT

BECTU v Tudor Gates (Certification Officer)

[2001] UKEAT 1462_00_1004 · 2001-04-10

1 We have before us the Full Hearing of an appeal by BECTU from a decision of the Certification Officer. Today BECTU has been represented by Mr Langstaff QC. The Respondent to the appeal, who was the Applicant below, Mr Tudor Gates, appeared before us in person.

2 Sections 46-53 of the Trade Union and Labour Relations (Consolidation) Act 1992 include provisions, which we shall have to look at in greater detail, as to the need for trade unions to conduct elections for certain of the positions in the unions. Section 54(2) confers on members of a trade union the right to complain that the statutory requirements have not been complied with. Mr Gates is a member of BECTU; he was at the material time and is in a position to complain, as he does. The complaint can be made, as this one was, to the Certification Officer - see section 54(1), section 55(1). The Certification Officer upheld Mr Gates’ complaint. Section 56(a) confers a right to appeal from the Certification Officer to this Appeal Tribunal, and BECTU accordingly thus appeals.

3 The material provisions of the 1992 Act begin with its preamble:

“An Act to consolidate the enactments relating to collective labour relations, that is to say, to trade unions, employers’ associations, industrial relations and industrial action.”

Then at Section 46(1):

“CHAPTER IV

ELECTIONS FOR CERTAIN POSITIONS

Duty to hold elections

Duty to hold elections for certain positions

(1) A trade union shall secure –

(a) that every person who holds a position in the union to which this Chapter applies does so by virtue of having been elected to it at an election satisfying the requirements of this Chapter, and

(b) that no person continues to hold such a position for more than five years without being re-elected at such an election.

(2) The positions to which this Chapter applies (subject as mentioned below) are -

(a) member of the executive

(b) any position by virtue of which a person is a member of the executive,

(d) general secretary;-

and the requirements referred to above are those set out in sections 47 to 52 below.

(3) In this Chapter “member of the executive” includes any person who, under the rules or practice of the union, may attend and speak at some or all of the meetings of the executive, otherwise than for the purpose of providing the committee with factual information or with technical or professional advice with respect to matters taken into account by the executive in carrying out its functions.

(4) This Chapter does not apply to the position of president or general secretary if the holder of that position –

(a) is not, in respect of that position, wither a voting member of the executive or an employee of the union,

(b) holds that position for a period which under the rules of the union cannot end more than 13 months after he took it up, and

(c) has not held either position at any time in the period of twelve months ending with the day before he took up that position.

(5) A “voting member of the executive” means a person entitled in his own right to attend meetings of the executive and to vote on matters on which votes are taken by the executive (whether or not he is entitled to attend all such meetings or to vote on all such matters or in all circumstances).

(6) The provisions of this Chapter apply notwithstanding anything in the rules or practice of the union; and the terms and conditions on which a person is employed by the union shall be disregarded in so far as they would prevent the union from complying with the provisions of this Chapter.

4 Section 49 sets out detailed requirements as to there needing to be a scrutineer and providing for his independence. Section 50(1):

“Entitlement to Vote

(1) Subject to the provisions of this section, entitlement to vote shall be accorded equally to all members of the trade union.

(2) The rules of the union may exclude entitlement to vote in the case of all members belonging to one or more of the following classes, or to a class falling within one of the following –

(a) members who are not in employment

(b) members who are in arrears in respect of any subscription or contribution due to the union

(3) The rules of the union may restrict entitlement to vote to members who fall within –

(a) a class determined by reference to a trade or occupation

(b) a class determined by reference to a geographical area, or

[and this needs to have attention paid to it because it is a provision on which Mr Langstaff relied] (c) a class which is by virtue of the rules of the union treated as a separate section of the union, or to members who fall within a class determined by reference to any combination of the factors mentioned in paragraphs (a), (b) and (c). The reference in paragraph (c) to a section of a trade union includes a part of the union which is in itself a trade union.

(4) Entitlement may not be restricted in accordance with subsection (3) if the effect is that any member of the union is denied entitlement to vote at all elections held for the purposes of this Chapter otherwise than by virtue of belonging to a class excluded in accordance with subsection (2).

Subsection (4) is not a very easy provision to understand but it would seem to require that whereas a person falling within subsection (2) can be excluded from all votes, so long as he remains within the subsection (2) class, a person who is only within a subsection (3) class cannot be generally and totally excluded.

5 Section 51 makes reference to a method of voting by the marking of a voting paper. We do not think we need to set that out, though we have it in mind, and, equally, subsection (2) of Section 51 provides for voting papers. Subsection (4) says:

“So far as is reasonably practicable, every person who is entitled to vote at the election must –

(a) have sent to him by post, at his home address, or another address which he has requested the trade union in writing to treat as his postal address, a voting paper which either lists the candidates at the election or is accompanied by a separate list of those candidates; and

(b) be given a convenient opportunity to vote by post.”

Subsection (6) says:

“The ballot shall be so conducted as to secure that the result of the election is determined solely by counting the number of votes cast directly for each candidate.”

Section 52 is headed, ‘Scrutineer’s report’; and amongst the things a scrutineer must report on is the number of valid votes cast in the election for each candidate. Section 53, says:

“Nothing in this Chapter shall be taken to require a ballot to be held at an uncontested election.”

Section 108A, to which there was some reference in the Certification Officer’s report, says:

“Right to apply to Certification Officer

(1) A person who claims that there has been a breach or threatened breach of the rules of a trade union relating to any of the matters mentioned in subsection (2) may apply to the Certification Officer for a declaration to that effect, subject to subsections (3) to (7).”

And at Section 108A (2)(a):

“(2) The matters are -

(a) the appointment or election of a person to, or removal of a person from, any office;”

at subsection (3):

“The applicant must be a member of the union, or have been one at the time of the alleged breach or threatened breach.”

Section 108C:

“Appeals from Certification Officer

An appeal lies to the Employment Appeal Tribunal on any question of law arising in proceedings before or arising from any decision of the Certification Officer under this Chapter.”

So much for the statutory provisions.

6 We have a copy of the rules of BECTU (the Broadcasting Entertainment Cinematograph & Theatre Union) and, happily, not all that many need to be referred to.

(b) provides that:

“Only paid-up members shall be eligible to hold any office, act as delegate or representative, or to vote on any question affecting the union …..”

27(a):

“Branches and shops

Every member of the union, in addition to being a member of a division and an area, as provided by rule 30, shall be a member of a branch.”

Rule 30 says that:

“Every member of the union, in addition to being a member of a branch, as provided by rule 27, shall be a member of both a division and an area.”

Rule 33:

“National Executive Committee

(a) The general management and administration of the union’s affairs shall be vested in a National Executive Committee, which shall be the principal; executive committee of the union and which shall be responsible to annual conference for the working of the union in accordance with these rules.

(i) Art and Entertainment

(ii) BBC

(iii) Independent Broadcasting

(iv) Laboratories

(v) London Production

(vi) Regional Production

as defined in rule 31 and/or such other divisions as may be established under rule 31(b) on the basis of one representative for each 2,000 members or part thereof in each respective division. The successful candidates shall be those elected in accordance with clause (h)(iv) below.

[This is the next and important provision] .

The National Executive Committee shall elect the President, Vice-President and Treasurer from amongst its members.

(f) provides:

“Subject to clause (e), each member of the National Executive Committee shall be elected and hold office for a period of two years…..” (h)(iv), to which reference was made earlier, is this:

“Voting arrangements shall prevent any candidate from being elected to more than one place on the National Executive Committee.”

(l) says:

“The National Executive Committee shall determine any question on which the rules are silent …..”

(s) says:

“The General Secretary and Assistant General Secretaries shall attend all National Executive Committee meetings. They may speak but shall not have the right to vote.”

Rule 35 says:

“General officers

(a) The general officers of the union shall comprise the president, the vice-president and the treasurer who shall be elected in accordance with the provision of rule 33(b).

(c) says:

“The president shall take the chair at meetings of conference and of the National Executive Committee.”

As for the annual conference, dealt with under rule 40, 40(a)(i) says:

“the President of the union, who shall have a casting vote”

At Conference there is express provision under 40(l) that:

“Voting at meetings of conference shall be by poll of delegates, normally by show of hands.”

Strangely, although this is no more than a tease of the union, it is difficult to find a provision that says each member shall in general have one vote, but it might be that it is there and has just not come to notice; it matters not for present purposes. That we hope is sufficient background.

7 The complaint that Mr Gates made was made on 25 May 2000. It led to a hearing on 5 September 2000 by the Certification Officer, Mr E G Whybrew. BECTU was then represented by its solicitors and Mr Gates, as here, was in person. The decision was given on 2 November 2000, a comprehensive decision some 30 pages long, which considers matters in admirable detail. Mr Whybrew says in his paragraph 1.5:

“On the 25 May 200, I received complaints from Mr Gates a member of the Broadcasting, Entertainment Cinematograph and Theatre Union (BECTU). Mr Gates made two complaints. First that the union had held an election for the post of President of the union, on Sunday, 21 May 2000, which breached the 1992 Act (Complaint One) …..”

He then goes on to a second complaint with which we have not been concerned. It is only the first complaint with which we are concerned. Mr Whybrew continued, in paragraph 1.7:

“After careful consideration of the documents, evidence, arguments put to me and the relevant legislation:

“I declare that the Broadcasting, Entertainment Cinematograph and Theatre Union was in breach of section 46(1) of the 1992 Act in that the union failed to ensure that the President of the union had been elected to that position in an election satisfying the requirements of the Act.” ”

He said in paragraph 1.9:

“This is clearly a case in which I should issue an enforcement order. So, by agreement with the parties (but such agreement being without prejudice to the right of appeal of the Employment Appeal Tribunal), I issue the following order to the Broadcasting, Entertainment, Cinematograph and Theatre Union;

“To secure by 31 May 2001 that rule changes have been put in place to ensure that the post of President of the union is filled according to the requirements of Chapter IV of the Trade Union and Labour Relations (Consolidation) Act 1992 as amended, and further to secure that the post of President is filled under the new arrangements by 31 May 2002.”

The order is worded in this way to give the union an opportunity to consider and adopt one of the various options open to it to satisfy the requirements of the Act.”

Mr Whybrew then carefully sets out the relevant statutory provisions. He recited rule 33(b). He says in paragraph 2.1:

“The union’s rule book (rule 33(b) stated that the National Executive Committee (NEC) shall elect the President, Vice-President and Treasure from amongst its members. The NEC was elected by the union’s membership every two years and, at the first meeting of the newly elected NEC, the NEC then elected the President from amongst its number. It was this procedure (the election of the President by the NEC from its number) that Mr Gates believed was in conflict with the requirements of the legislation.”

Mr Whybrew summarised Mr Gates’ argument in 2.6:

“Mr Gates argued that BECTU’s present system required two elections and one of these elections was not a direct election as required by the Act.”

In 2.8 he said:

“He [that is Mr Gates] stated his belief that the posts of President and General Secretary were the most important posts in the union and that all members should be allowed to vote for the President as they did for the post of General Secretary and that it should not just be voted on by an electoral college as was the case in BECTU.”

In 2.13 he says:

“The present holder of the post, Mr Gates explained, was able to vote and therefore should be elected, by the whole membership.”

8 Mr Whybrew then turned to the BECTU case. Speaking of Mr Cavalier, the solicitor then appearing for BECTU, he said at paragraphs 2.18 – 2.19:

“He argued that a President, General Secretary or other official was only subject to the requirements if “by virtue of holding [that] position” he was a member of the Executive.”

Where, as in the present case, Mr Cavalier stated, the Executive was elected by the members in a ballot complying with the statutory provisions and the President was then elected by the Executive from amongst its number, there was not a requirement for a separate ballot of members for the election of President.”

BECTU then explored earlier statutory provisions and took the point, as we have already made, that the 1992 Act is a consolidation act. They said, (this is Mr Cavalier’s argument) at paragraphs 2.23 – 2.24:

“ A consolidation act, he argued does not and should not be interpreted as having changed the law.

He argued that the 1992 Act does appear incorrectly to reflect the pre-existing legislative position.”

In 2.25, Mr Whybrew sets out a further argument:

“This, Mr Cavalier argued, should not be interpreted as requiring a further ballot of members for the position of President when the President is already (and can only be) a member of the Executive by virtue of an election complying with the statutory provisions. A direct election of President, he felt, is only required if the President was a member by virtue of his position as President (either by rule or because of the deeming provision in statute) and was not already a member of the Executive by direct election.”

9 Mr Whybrew then set out some citations as to the modern approach, (by which I mean post-1976) to the construction of consolidation acts. In particular he cited a passage from Lord Wilberforce’s speech in Farrell v Alexander

[1976] 2 ALL ER 721

. Beginning with a quote from what Mr Whybrew himself says and then citing from Lord Wilberforce the passage reads:

“I repeat here the passages regarded as most pertinent as they appear to me to offer both clear and helpful guidance. Lord Wilberforce stated [now we have a quote direct from Farrell v Alexander] “…. that self contained statutes, whether consolidating previous law, or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve. ….”

Mr Whybrew records that BECTU argued that there was, indeed, such a degree of ambiguity. In paragraph 2.32 Mr Whybrew says:

“Mr Cavalier considered there was as much ambiguity and difficulty in this case as that referred to by Lord Bridge [that is a reference to a citation from Lord Bridge in Associated Newspapers v Wilson] and, as such, this would entitle me to go behind the provisions of the 1992 Consolidation Act to resolve that difficulty.”

In 2.33 and 2.34 Mr Whybrew says:

“2.33 Mr Cavalier, on behalf of the union, submitted that a proper interpretation, of the Act in this case was that a person who is already a directly elected member of the Executive and is required to be so in order to be President is not also required to be directly elected to an office of President which does not of itself entitle him to membership of the Executive. He argued that the union’s method of , first a direct election of the Executive by a membership ballot followed by the election, by the Executive, of a President from amongst its number complied with the requirements of the legislation.”

2.34 He submitted that if the person is a member of the Executive, it is not necessary for them to submit to a second and separate election under the statute for a position which they hold as a member of the Executive.”

Mr Whybrew found there to be no real or substantial difficulty in the construction of the Act and no ambiguity. He said in paragraph 2.46:

“In reading section 46(1) of the Act, I cannot see that there is a real or substantial difficulty. I do not find the 1992 Act to be ambiguous. [and a little later] The wording of sections 46(1) and 46(2) is clear, that every person who holds the position of President must be elected to it by virtue of an election satisfying the provisions of the Act.”

In 2.51 he says:

“Running the two elections together by first electing the NEC by full ballot of the members and the newly elected executive then elects the President from amongst its members is not an election satisfying the Act.”

In 2.53 and 2.54 he says:

“2.53 The key question of fact in this case is whether the membership were given a chance to vote in an election for the post of President. On that point there is no dispute. Only members of the Executive were eligible to vote in the election to the post of President. The key question of law is whether the members at large should have been given a chance to vote for the President and on that I have found that section 46 of the Act require them to be given such a chance.

2.54 It is for these reasons, I found the union had breached section 46(1) of the Act.”

That was Mr Whybrew’s decision.

10 On 5 December 2000, BECTU lodged a Notice of Appeal at the Employment Appeal Tribunal. Mr Langstaff today in his written skeleton argument and in his oral address advances a number of points. The first is an argument that is based on a presumption that Mr Whybrew’s construction requires that a person elected as President must (if, at any rate, the Presidency is not a Presidency of the rather honorary or titular kind that is described in section 46(4)) be separately elected as a member of the Executive. That he said, would be absurd; and absurdity is to be avoided and absurdity cannot have been intended by Parliament. This argument is built upon the supposition that a man or woman cannot at one and the same election stand as, and be voted on as, President and as also thereby ex officio a voting member of the NEC. If voting were to be so organised any member of the union voting on such a ticket would know that the candidate could be both President and ex officio an NEC member if sufficient votes for the person to become President were attracted by that candidate; and that he or she would not be if the candidate failed to attract that number of votes. We do not see any impediment to an election in such a case, where, for example, Messrs A, B, C, D, E and F all stand as members of the NEC, but where at the same time only Messrs A and B also contest the Presidency. There could be a separate vote, at one and the same election, firstly for membership of the NEC and, secondly, for the Presidency, coupled with a rule under the BECTU rule 33(h)(iv) that if the person elected as President and hence, ex officio, to the NEC, has also received sufficient votes to be elected separately as a member of the NEC he shall not be taken to have been elected to more than one place on the NEC but that the candidate to the NEC who would otherwise have come nearest to having sufficient votes to be elected to the NEC should be elected in his place at the NEC. There seems to us to be no absurdity in any such system, indeed the Act even contemplates the complication of transferable votes being a possible system – see section 51(3). Without alleged absurdity on which it rests this first argument seems to us to collapse.

11 Mr Langstaff’s next argument requires a reference back to the Trade Union Act of 1984 and the Employment Act of 1988. He argues in his skeleton argument:

“… a view of the purpose of the 1992 Act, informed by the legislative history, is that the purpose of the Act was to prevent any person holding power at the centre of a Trade Union without that individual having the support of the membership freely expressed by vote.

That principles does not require both that an individual be elected a member of the Executive and that he also be elected President or (as the case may be) General Secretary”

One can agree that but there is no need for two separate elections. We do see a need under the current statute for the President to be directly elected by a majority of eligible and voting members and not by a majority of any other group such as the NEC. If a member of the union can vote only for a member of the NEC, which then selects which of its number is to be President, a voting member of the union will not or may not know who even are the candidates for the Presidency. It does not follow that every candidate for the NEC would wish, if attracting sufficient votes from the NEC members, to be President of the union. Nor would a voting member even know who were to be the members of the electoral college who would ultimately choose the President, as that would depend, of course, on the respective voting for the different candidates for NEC membership. Members of the union would not even be able to be sure that the President selected would at least have commanded, indirectly through the NEC members who voted for him, the votes of representatives of the majority of the union membership as a whole. It would be quite easy, looking at the system under which the union is divided into divisions with different representatives having membership of the NEC, to devise a scenario in which the ultimate President could be selected notwithstanding that the majority of votes cast in the union as a whole had been cast against candidates known to support him.

12 The indirect system which Mr Langstaff and BECTU espouse leads to a position in which a voting member of the union will not necessarily have any conscious voice in the selection of a President. If one has an election at which there is a clear slate - vote this way for such and such to be President and vote another way for another person to be President - in other words where each candidate for the NEC has a clear identified slate that he, if elected, will press for the Presidency of such and such an individual, then you might have a situation in which a voting member could know in which direction his vote for President, or his wish as to the Presidency, would ultimately go, but, short of clear identification of each slate in that way, one would have a situation, if Mr Langstaff and BECTU’s argument succeeded, that a voting member would not know which way he ought to vote in order to lead to the candidate he would prefer as President becoming President. All in all we cannot see the system used at present as satisfying the combined requirements of section 46(1)(a), section 46(2)(c), section 50(1), and section 51(6). Mr Gates, rightly in our view, emphasises the words ‘to it’ in section 46(1)(a), requiring candidates for positions to be elected ‘to it’ that is to say to that position in the union, namely, in the case before us, to the office of Presidency.

13 We see no ambiguity in the statutory provisions read together and we adopt Lord Wilberforce’s dictum in Farrell Supra to rule out any need to go in any meticulous way through earlier statutory provisions. We see it as reasonably possible to interpret the 1992 Act without absurdity, without substantial difficulty and without ambiguity and hence without recourse to earlier legislation.

14 So far we have detected no error of law in the decision of the Certification Officer. Mr Langstaff next mounts an argument under section 50(3) which seems to be somewhat obliquely touched on by Mr Whybrew but was not, it would seem, as fully developed below as it has been by Mr Langstaff. We do not say for a moment that the point is not open to Mr Langstaff; it is. Section 50(3) provides, as we have already cited, that to bring a body of persons within section 50(3)(c), that body has to be firstly, a class of individuals, secondly, which is, by way of the rules, thirdly, treated as a separate section of the union, fourthly, in respect of which, by way of the rules, there is a restriction as to voting under which the voting in question is restricted to that section. The provisions of subsection (3) are not easy to construe because the word ‘section’ is undefined. What is meant by ‘section’? Mr Langstaff was driven to say that any one or more individuals separated out of the total membership of the union by the rules for any purpose are, for the purposes of section 50(3), to be regarded as treated as a section within the union for the purposes of voting for the Presidency. That seems to us far too unlimited. We shrink from giving a definition, from giving a meaning to the word ‘section’ in all possible contingencies, but we do say that the definition must include there being, with respect to that section, some identifiable sectional interest, some relevant common interest existing amongst its members. One can see that being so in the not infrequent cases of unions having, for example, a woman’s section, or a black section, or a gay and lesbian section, members of which all have those respective sectional common interests or factors between them. It may also be that the word ‘section’ imports some need to look at the particular purpose for which their membership of the section is being considered. The sectional interest between members of a union which exists between, say, all who are black, may well be a proper identifying factor existing between them and making them a section relative to voting, say, for the chairmanship of the black section, but it may not be so when the very same individuals were voting for the chairmanship of the gay and lesbian section, as the blacks might not then have a sectional interest, as blacks, for the purpose of voting in the gay and lesbian section. It is not an easy word fully to define in this context and its meaning will plainly take colour from such matters.

15 With that approach to the meaning of the word ‘section’ we note this. Firstly, the President here is President of the whole union. He is not merely President of some section or part of it. It is not a sectional office and one should therefore not approach the issue with a disposition that a merely sectional vote will necessarily suffice. Secondly, it seems to us that the NEC members have no identifiable unifying common feature, no truly sectional interest in relation to identification of the President of the whole union. Their membership of the NEC as such does not unit them in some common interest as to who should be President; indeed it will be quite likely, in any contested election, that either by way of informal mandate from their separate electing divisions or from their own individual dispositions, they will want to vote in different ways as to who should be President. Thirdly, it may be said that although the word ‘section’ is not unknown in trade union circles in relation to such things as a woman’s section or a black section; the BECTU rules make no reference at all to the NEC being a section within the union.

16 We therefore resist Mr Langstaff’s argument based on section 50(3). We conclude that the electoral college system does not comply with the Act. We have found in that respect no error of law, which is all we are concerned about, in the decision of the Certification Officer and accordingly we dismiss the appeal.