UNISON v Street (Trade Union Rights)

A trade union rulebook may contain an implied term arising from the union’s custom and practice. Such a term may permit proportionate intervention in the management of a dysfunctional branch, including temporary suspension of rules governing branch organisation.

The implied power is strictly limited. Suspension of a rule affecting members’ democratic participation is lawful only where it is both necessary and proportionate to the legitimate aims of regional supervision. A clear express rule does not prevent implication where the rulebook itself is construed as including its implied terms. The fact-sensitive necessity and proportionality question must be determined by the Certification Officer.

Mr and Mrs Street, retired members of UNISON’s Derbyshire County Branch, complained to the Certification Officer that UNISON had breached rule G3.2 of its rulebook by failing to hold the branch annual general meeting during the first quarter of 2012.

The branch had been placed under regional supervision because of serious dysfunction. The Certification Officer held that the National Executive Council could not set aside the rulebook and declared a breach. UNISON appealed on a question of law.

The central issue was whether the rulebook contained an implied term authorising temporary suspension of branch-management rules during regional supervision, and, if so, whether suspending the AGM requirement was necessary and proportionate.

1. Appeal allowed and remitted. The Certification Officer had approached the issue too narrowly. The issue was not simply whether UNISON had power to place a branch under regional supervision, but whether it could suspend rules which would otherwise govern the branch while doing so.

2. Following Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15, a trade union rulebook is not necessarily exhaustive. It must be construed as members would understand it, having regard to custom and practice as well as its written terms. UNISON’s established practice since its creation of placing branches under regional supervision justified implication of a term enabling it to intervene in a dysfunctional branch.

3. The implied term did not confer an unrestricted power to disregard the rules. It authorised suspension of rules concerning the organisation and management of a branch only where suspension was necessary and not disproportionate for achieving the aims of regional supervision.

4. The principle that an implied term cannot override an unambiguous express term remained applicable. However, rule D2.1’s prohibition on action inconsistent with the rulebook extended to implied as well as express rules. A suspension falling within the implied term would therefore not be inconsistent with rule D2.1.

5. Cancellation of an AGM may deprive members of important democratic rights. The Certification Officer had not determined whether suspending the 2012 AGM was necessary and proportionate in light of that interference. The matter was remitted for that determination, with the complaint to be dismissed if the test is met and upheld if it is not.

• Employment Appeal Tribunal: Allowed UNISON’s appeal and remitted the necessity and proportionality issue to the Certification Officer.
• Certification Officer: Declared that UNISON had breached rule G3.2 by failing to hold the branch AGM in the first quarter of 2012.