Stewart v Moray Council

Last updated

Stewart v Moray Council
Court Employment Appeal Tribunal
Citation(s)[2006] ICR 1253 (EAT)
Keywords
Information and consultation

Stewart v Moray Council [2006] ICR 1253 (EAT) is a UK labour law case, concerning the information and consultation in the European Union.

Contents

Facts

500 employees of Moray Council made a request for an I&C procedure. This was over 10 per cent of the employees, but not 40 per cent. Moray Council claimed that it did not need an I&C procedure, because there was already a collective agreement with a protocol about information and consultation with the union. Moray Council demanded a ballot with a 40 per cent threshold under ICER 2004 regulation 8(1) voting. Stewart argued the collective agreement did not provide for representation of non-union employees and had not been endorsed by all employees, so the collective agreement was not a ‘pre-existing agreement’ under regulation 8(1).

The Central Arbitration Committee decided that the pre-existing agreement did not comply with all requirements because although a majority of employees were union members, one of the recognition agreements was unclear about when consultation would take place. The agreement relating to school teachers failed to set out how the employer gave information to employees or their representatives or sought views on information under regulation 8(1)(d).

Judgment

The Employment Appeal Tribunal upheld. The employer was required to negotiate for an information and consultation procedure. ICER 2004 do not prescribe any way that an employee approval is to be demonstrated for a pre-existing agreement. This contrasts to negotiated agreements under reg 16. Elias J said the following.

36. But there is a further potential problem. Was the CAC entitled to find the requisite approval in the fact that the majority consists of trade union members? Mr Stewart says not; he correctly says that the non unionists have not had the opportunity to pass any comment on the agreements ostensibly regulating their position, nor have they participated in the appointment or election of the union representatives who are consulted pursuant to them. He contends that all the employees should have been entitled to express their support or otherwise for the existing arrangements. Mr Napier submits that this is irrelevant. It is not necessary in all cases that each employee should expressly have had the opportunity to approve the agreement; it is enough that it is in fact supported by a majority of the relevant employees. He observes that the Regulations provide that it is for the CAC to determine whether that majority approval exists. It is not necessary that each employee should have had the right to express an opinion on the matter, whether in a ballot or some other way. The CAC must consider all the evidence before it and determine whether there is the requisite support for the agreement. If there is a proper evidential basis for the CAC's conclusion, the EAT cannot interfere. It is only if the CAC errs in law that the EAT has power to intervene.

37. We have found this the most difficult issue in the case, but we prefer the argument of Mr Napier. It is in our view relevant that regulation 8 does not prescribe any particular way in which employee approval needs to be demonstrated. This is in contrast to regulation 16 which specifically provides for circumstances where the employees must approve a negotiated agreement, and stipulates that any such approval must be manifest either by support shown in a ballot, or by approval in writing of a majority of the employees. Had the draftsman intended that there should be a similar positive and specific demonstration of support to establish the requisite approval under regulation 8, we think that he would have said so. This is particularly so since in practice collective agreements negotiated with trade unions will not, in the ordinary way, be subject to express approval in a ballot, and the draftsman must be taken to know that.

38. Of course, there must be evidence from which the CAC can, using their wide industrial relations experience, properly infer that the majority of the employees covered by a particular agreement have approved that agreement. Obviously whether there is such evidence will depend on the particular circumstances, but in our view it will usually be legitimate to infer approval if, at the time the agreement was made, the majority of the employees covered by the agreement were members of the union or unions which are parties to that agreement. (The CAC rightly focused on the position when the agreements were made; they did not have union membership statistics for that time but assumed that they were not materially different to the statistics showing membership at the time of the application.) However, it will not always be legitimate to draw such an inference even where the trade unionists are in a majority if, for example, there is evidence that there was a degree of opposition to the agreement at the time from employees within the trade union itself. The CAC is a highly experienced body and it will be for it to decide, in the light of all the evidence, whether it is proper to infer the requisite support or not. If, therefore, union members constitute a majority of the employees covered by the agreement, then generally the approval of the employees will be established. Whatever the opinion of the non-unionists, the support of the trade unionists will carry the day. If, by contrast, union membership were in a minority, then it would not be appropriate to infer the necessary approval and it would be necessary for the employer to be able to establish the relevant approval in some other way, such as by seeking formal approval in a ballot of the relevant employees. This would have to be done prior to the request being made.

See also

Notes

    Related Research Articles

    Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The interests of the employees are commonly presented by representatives of a trade union to which the employees belong. The collective agreements reached by these negotiations usually set out wage scales, working hours, training, health and safety, overtime, grievance mechanisms, and rights to participate in workplace or company affairs.

    United Kingdom labour law Labour rights in the UK

    United Kingdom labour law regulates the relations between workers, employers and trade unions. People at work in the UK can rely upon a minimum charter of employment rights, which are found in Acts of Parliament, Regulations, common law and equity. This includes the right to a minimum wage of £9.50 for over-23-year-olds from April 2022 under the National Minimum Wage Act 1998. The Working Time Regulations 1998 give the right to 28 days paid holidays, breaks from work, and attempt to limit long working hours. The Employment Rights Act 1996 gives the right to leave for child care, and the right to request flexible working patterns. The Pensions Act 2008 gives the right to be automatically enrolled in a basic occupational pension, whose funds must be protected according to the Pensions Act 1995.

    Ratification is a principal's approval of an act of its agent that lacked the authority to bind the principal legally. Ratification defines the international act in which a state indicates its consent to be bound to a treaty if the parties intended to show their consent by such an act. In the case of bilateral treaties, ratification is usually accomplished by exchanging the requisite instruments, and in the case of multilateral treaties, the usual procedure is for the depositary to collect the ratifications of all states, keeping all parties informed of the situation.

    In labor law, a union shop, also known as a post-entry closed shop, is a form of a union security clause. Under this, the employer agrees to either only hire labor union members or to require that any new employees who are not already union members become members within a certain amount of time. Use of the union shop varies widely from nation to nation, depending on the level of protection given trade unions in general.

    A union security agreement is a contractual agreement, usually part of a union collective bargaining agreement, in which an employer and a trade or labor union agree on the extent to which the union may compel employees to join the union, and/or whether the employer will collect dues, fees, and assessments on behalf of the union.

    Trade unions in Malaysia are regulated by the Trade Unions Act of 1959.

    Enterprise bargaining is an Australian term for a form of collective bargaining, in which wages and working conditions are negotiated at the level of the individual organisations, as distinct from sectoral collective bargaining across whole industries. Once established, they are legally binding on employers and employees that are covered by the Enterprise bargaining agreement. An Enterprise Agreement (EA) consists of a collective industrial agreement between either an employer and a trade union acting on behalf of employees or an employer and employees acting for themselves.

    The National Labor Relations Board, an agency within the United States government, was created in 1935 as part of the National Labor Relations Act. Among the NLRB's chief responsibilities is the holding of elections to permit employees to vote whether they wish to be represented by a particular labor union. Congress amended the Act in 1947 through the Taft–Hartley Act to give workers the ability to decertify an already recognized or certified union as well. This article describes, in a very summary manner, the procedures that the NLRB uses to hold such elections, as well as the circumstances in which a union may obtain the right to represent a group of employees without an election.

    Mexican labor law governs the process by which workers in Mexico may organize labor unions, engage in collective bargaining, and strike. Current labor law reflects the historic interrelation between the state and the Confederation of Mexican Workers, the labor confederation officially aligned with the Institutional Revolutionary Party, which ruled Mexico under various names for more than seventy years.

    Union busting Efforts to prevent or hinder unionization among workers

    Union busting is a range of activities undertaken to disrupt or prevent the formation of trade unions or their attempts to grow their membership in a workplace.

    The Trade Union and Labour Relations (Consolidation) Act 1992 is a UK Act of Parliament which regulates United Kingdom labour law. The Act applies in full in England and Wales and in Scotland, and partially in Northern Ireland.

    A collective agreement, collective labour agreement (CLA) or collective bargaining agreement (CBA) is a written contract negotiated through collective bargaining for employees by one or more trade unions with the management of a company that regulates the terms and conditions of employees at work. This includes regulating the wages, benefits, and duties of the employees and the duties and responsibilities of the employer or employers and often includes rules for a dispute resolution process.

    The Information and Consultation of Employees Regulations 2004 are a United Kingdom statutory instrument. This follows the EU Information and Consultation of Employees Directive 2002/14/EC establishing a general framework for informing and consulting employees.

    The Essential National Industries (Employment) Decree 2011 is a controversial decree issued by the military-led 'interim government' of the Republic of Fiji in September 2011. It was followed a few days later by the Essential National Industries and Designated Corporations Regulations 2011.

    <i>Dryden v Greater Glasgow Health Board</i>

    Dryden v Greater Glasgow Health Board [1992] IRLR 469 is a UK labour law case concerning the contract of employment. It held that a variation of company workplace customs, which are incorporated into individual contracts of employment can take place after a proper consultation without breaching employees' contracts.

    South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.

    <i>Fair Work Act 2009</i> Australian industrial relations law

    The Fair Work Act 2009 is an Australian law passed by the Rudd Government to reform the industrial relations system in Australia. It replaced the Howard Government's 2005 WorkChoices legislation. The law established Fair Work Australia, later renamed the Fair Work Commission. It is a key piece of legislation, providing for terms and conditions of employment in Australia, and also sets out the rights and responsibilities of parties to that employment.

    <i>Young, James and Webster v United Kingdom</i>

    Young, James and Webster v United Kingdom [1981] ECHR 4 is a UK labour law case, concerning freedom of association and the closed shop. It found that the closed shop was incompatible with the convention, although it does not prevent fair share agreements, or automatic enrollment in union membership with an opt-out.

    Employees Rights to Representation, Consultation and Collective Bargaining Ordinance

    The Employee's Rights to Representation, Consultation and Collective Bargaining Ordinance is a repealed law of Hong Kong to provide for the rights of employees to representation, consultation and collective bargaining; and to provide for matters incidental thereto or connected therewith. It was introduced by trade unionist Lee Cheuk-yan in the colonial Legislative Council on the eve of the handover of Hong Kong in April 1997 but was soon repealed by the Provisional Legislative Council (PLC) in October 1997.

    <i>IWGB v CAC</i>

    Independent Workers of Great Britain Union v Central Arbitration Committee [2021] EWCA Civ 952 is a UK labour law case, concerning sham self-employment and the human right to unionise and collectively bargain.

    References

    This page is based on this Wikipedia article
    Text is available under the CC BY-SA 4.0 license; additional terms may apply.
    Images, videos and audio are available under their respective licenses.