Balfour Beatty Engineering Services Ltd v Unite the Union

On an application for an interim injunction restraining industrial action, the court must assess the likelihood that the union will establish the statutory trade dispute defence at trial. The ordinary American Cyanamid test is insufficient where interim relief may determine the union’s practical opportunity to take action.

Balloting obligations under the Trade Union and Labour Relations (Consolidation) Act 1992 require a flexible, practical assessment. “Reasonably practicable” is an objective standard, but union officers retain judgment and need not take every step that a judge might have preferred. Accidental and insignificant failures may be disregarded under section 232B. An injunction is unlikely where the union has taken substantial reasonable steps to identify and ballot the statutory constituency and does not intend to call unballoted members to act.

Balfour Beatty Engineering Services Ltd sought an interim injunction preventing Unite the Union from inducing industrial action based on ballots conducted between 19 January and 2 February 2012. The application alleged failures to comply with the balloting and notification requirements in Part V of the Trade Union and Labour Relations (Consolidation) Act 1992, particularly the obligation to send voting papers to all entitled members and to conduct a secret ballot.

The dispute concerned collective bargaining arrangements in the construction industry. The central issues were whether Unite had complied, so far as reasonably practicable, with sections 227 and 230(2), whether any failures could be disregarded under section 232B, and whether Unite was likely to establish the trade dispute defence at trial.

1. Interim injunction test. The application was refused. Under section 221 of the Trade Union and Labour Relations (Consolidation) Act 1992, the court had to take into account the likelihood that Unite would establish the trade dispute defence at trial. The ordinary American Cyanamid approach was inappropriate because interim relief could effectively determine the union’s opportunity to take industrial action. Even where the union was likely to establish the defence, an injunction might exceptionally remain appropriate.
2. Balloting constituency and reasonable practicability. The relevant constituency under section 227 comprised those whom Unite reasonably believed, at the material time, to be employed by BBES and whom it intended to induce to take industrial action. Section 230(2) required every entitled person to receive a voting paper and a convenient opportunity to vote, so far as reasonably practicable. That phrase imposed an objective standard, but allowed union officers reasonable judgment about the appropriate steps. They were entitled to rely on information in their possession without proving that it was definitive, and were not required to take every step that a judge might have chosen.
3. Unite had undertaken extensive checks, contacted members, updated its records and took further reasonable steps when additional information emerged. It was therefore likely to establish compliance with section 230(2).
4. Accidental failures. Section 232B provided an additional qualification where failures were accidental and unlikely to affect the ballot result. “Accidental” meant unintentional. The court could have regard to the actual result where it was known, although the evidence did not permit a reliable conclusion about the number or proportion of members omitted.
5. Unite’s stated intention not to call upon members who had not had an opportunity to vote further supported the conclusion that it threatened no unlawful conduct. The suggested secrecy objection was not pursued. No ground for an injunction was established.