Thompson v National Union of Mineworkers (Trade Union Membership)

A trade union rule on membership must be construed reasonably and in the context of the rules as a whole. A lay national official is not, merely by holding that office, within a rule conferring full membership on persons employed by the union or an area. The official may nevertheless qualify if employed, expressly or impliedly, to perform other authorised duties.

A restriction of candidacy to members of an objectively identifiable class is deemed reasonable by section 47(3) where the union does not choose the individuals within that class. An enforcement order under Trade Union and Labour Relations (Consolidation) Act 1992 s 108B must be confined to steps which remedy the breach declared.

The appellant, a member of the National Union of Mineworkers, complained to the Certification Officer about elections for Yorkshire Area Agent/Secretary and National Secretary. He alleged breaches of the union rules, challenged another member’s eligibility for full membership and candidacy, and alleged unreasonable exclusion from candidacy for National Secretary.

On 18 July 2013 the Certification Officer upheld one complaint because the Area Agent election had been postponed otherwise than by the National Executive Committee. He dismissed the remaining complaints. The appellant appealed on questions of law, including the construction of the membership rule, the application of section 47(3), and the terms of the enforcement order.

1. Appeal allowed in part. The appeal succeeded only against part of the Certification Officer’s enforcement order. The order had to require steps to remedy the failure to hold the Area Agent election within the published timetable. Its proviso allowing the National Executive Committee to decide that there should be no Area Agent did not remedy that breach and exceeded the proper scope of an order under Trade Union and Labour Relations (Consolidation) Act 1992 s 108B. The proviso was deleted.

2. The Certification Officer erred in construing Rule 5A(iii) as making lay National Officials eligible for full membership whether or not employed. Read reasonably and in the context of the rules as a whole, the rule requires a National Official to be employed by the union or an area. The court adopted the contextual approach to union rules in Jacques.

3. That error did not alter the result on the complaints concerning Mr Kitchen’s candidacy. It was open to the Certification Officer to find that he performed the Yorkshire Area’s administrative functions under an express or implied contract of employment. Such employment was not prohibited by the rules and brought him within Rule 5A(iii). His full membership and candidacy were therefore valid.

4. The restriction in Rule 14C to candidates who were members of the National Executive Committee established an objectively ascertainable class: members not on that committee. The class was not determined by whom the union chose to exclude. Section 47(3) consequently deemed the restriction not unreasonable, and the complaints concerning exclusion from the National Secretary election failed.

5. The later decision to discontinue an election was not within this appeal, which concerned the Certification Officer’s earlier decision and order. Any challenge to that later decision required a separate statutory complaint or appeal.

• Employment Appeal Tribunal: allowed the appeal only by deleting part of the Certification Officer’s enforcement order.
• Certification Officer: on 18 July 2013 upheld the complaint concerning postponement of the Area Agent election, made an enforcement order, and dismissed the remaining complaints.