Case No: HQ17X03156
Neutral Citation Number: [2017] EWHC 2253 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London
WC2A 2LL

Date: 06/09/2017
Before:

MR. JUSTICE LAVENDER

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Between:

	THOMAS COOK AIRLINES LIMITED	Applicant/
Claimant	
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	BRITISH AIRLINE PILOTS ASSOCIATION	Respondent/
Defendant	
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(Computer‑Aided Transcript of the Stenograph Notes of
Marten Walsh Cherer Limited, 1st Floor, Quality House,
6‑9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone Number 020 7067 2900.  Fax Number 020 7831 6864
e‑mail: info@martenwalshcherer.com)

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MR. JOHN CAVANAGH QC and MR. JULIAN MILFORD (instructed by Eversheds Sutherland) for the Applicant/Claimant

MR. OLIVER SEGAL QC and MR. STUART BRITTENDEN  (instructed by Farrer & Co.) for the Respondent/Defendant

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JUDGMENT
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MR. JUSTICE LAVENDER   : 
1.	The claimant company seeks an injunction to restrain the defendant trade union from calling a strike.  The context is a dispute between the parties over the pay and conditions of pilots employed by the claimant.  The merits of that dispute are not relevant to the issues which I have to decide.  However, it is relevant to note that the dispute is acknowledged to be a trade dispute as defined in section 244(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, which I will refer to as the 1992 Act.
2.	The defendant held a ballot of its members.  The question asked in the ballot paper was as follows:  "Are you prepared to take part in industrial action consisting of a strike?"  The defendant's members voted in favour of industrial action.  
3.	The defendant says that calling a strike will be lawful.  It relies on the protection provided to trade unions by section 219 of the 1992 Act for actions done in furtherance of a trade dispute.  Section 226(1)(a) provides that that protection only applies to industrial action which has the support of a ballot.  This means a ballot which complies with the requirements of sections 227 to 231 of the 1992 Act.  The defendant says that the ballot complied with all of those statutory requirements.  
4.	The claimant says that the ballot failed to comply with one of them, that is the requirement imposed by section 229(2D) of the 1992 Act.  This is a new provision.  It was introduced by the Trade Unions Act 2016.  It took effect on 1st March 2017.  It has not been considered by a court before.  It is relevant to consider both subsection (2C) and subsection (2D).  They provide as follows:  
"2(C):  Where the voting paper contains a question about taking part in industrial action short of a strike, the type or types of industrial action must be specified (either in the question itself or elsewhere in the voting paper).  
"2(D):  The voting paper must indicate the period or periods within which the industrial action, or as the case may be, each type of industrial action, is expected to take place."  
5.	The words "or, as the case may be, each type of industrial action" are inapplicable in the present case. 
6.	The relevant part of the voting paper stated as follows:  
"It is proposed to take discontinuous industrial action in the form of strike action on dates to be announced over the period from 8th September 2017 to 18th February 2018."
7.	Therefore, the issue between the parties is whether that voting paper complied with section 229(2D).  It is not for me to make a final determination on that issue today, but I do have to form a view on it, for reasons which I will explain.  
8.	I am grateful to the parties for reaching agreement on a number of matters.  First, it is agreed that the usual American Cyanamid principles do not apply to this application.  Instead, it is governed by section 221(2) of the 1992 Act.  That provides as follows:  
"Where - (a) an application for an interlocutory injunction is made to a court pending the trial of an action and; (b) the party against whom it is sought claims that he acted in contemplation or furtherance of a trade dispute, the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that party’s succeeding at the trial of the action in establishing any matter which would afford a defence to the action under section 219 (protection from certain tort liabilities) ..."
9.	In the light of that provision, and in the light of the judgment of the Court of Appeal in RMT v Serco [2011] ICR 848, it is common ground that this application falls to be determined by my answer to the following question:  is it more likely than not that the defendant failed to comply with section 229(2D)?  If the answer to that question is yes, then the defendant effectively accepts that I should grant the injunction sought.  But if the answer to that question is no, the claimant accepts that I should not grant the injunction.  
10.	My answer to that question is no, for reasons which I will explain briefly.  First, looking at the voting paper itself and the paragraph which I have quoted, a period is there specified, or "indicated", to use the words of the subsection.  It is a period within which the industrial action is "proposed", to use the words of the voting paper, to take place.  Prima facie, that is what was "expected", in the words of the subsection, would take place.
11.	As a matter of construction of the subsection, it does not seem to me to be likely that the court will conclude that more detail was required.  I accept that this is a matter of construction and questions of construction are often a matter of first impression.  I have been referred to paragraph 9 of the judgment in RMT v Serco and the guidance which that contains.
12.	The first point which arises is this.  If, as the claimant says, the subsection required more detail to be provided, how much more detail, and of what nature?  That is unclear.  It is a relevant consideration, when considering the construction of a subsection such as this, that one proposed construction of it may lead to it being vague and unworkable.  It strikes me that a trade union seeking to comply with this subsection might find it difficult to do so on the claimant's argument.
13.	Secondly, I was invited by the parties to consider the purpose of the subsection.  Helpfully, Mr. Cavanagh accepted that the paramount purpose is that a trade union member should know what he is being asked to vote for.  It seems in the present case that a member of the defendant union would have known what he was being asked to vote for.  Some union members in some cases might take the view that what they were being asked to vote for was wider in scope than they were prepared to approve.  In that case, they would no doubt exercise the option to vote no.  The members of the defendant union read this voting paper and exercised their right to vote as they did.  
14.	In relation to the construction of the subsection, I was shown certain other materials, in particular paragraph 26 of the Explanatory Note to the Trade Union Act 2016 and passages from the debates reported in Hansard for 20 October 2015, at columns 244, 248 and 251 to 252, when a Minister, Mr. Nick Boles MP, was responding to certain proposed amendments to what became subsection 229(2D).  I do not consider that any of these passages provide any support for the claimant's case.
15.	The submissions today focused to a certain extent on the question of what in fact the defendant expected when it issued this voting paper.  My attention was drawn, for example, to paragraph 50.1 of the witness statement of Mr. Brian Strutton, who is the general secretary of the defendant, in which he said:  
"We hoped and expected that no industrial action would be necessary at all once the ballot was made known to Thomas Cook."  
16.	It may also arise in cases such as this that a union expects that one day's strike ought to be sufficient to resolve the dispute, although the union seeks authority for further days of strike if necessary.
17.	It seems to me that the word "expected" in the subsection has to be read in the context of all of the uncertainties which are inherent in a trade dispute, some of which were explained by Mr. Strutton in paragraph 51 of his witness statement when he said as follows:  
"… planning industrial action strategy is necessarily both a dynamic as well as a reactive process.  It is one which is very much contingent upon (a), various factors which are either not known before the ballot papers are sent out to members and, (b) other variables which are entirely outside the control of the defendant, for example Thomas Cook's response to the ballot result.  All of the above considerations go into the mix in planning the intensity and frequency of the industrial action.  These are things that we only sensibly know after the ballot has actually taken place and as the negotiations develop."
18.	It became apparent in the course of argument that difficult and potentially insoluble conundrums could arise if the relevant expectation for the purpose of the subsection is taken to be the trade union's best guess as to how the trade dispute will end, rather than its proposals for the form of industrial action it seeks authority to take if the dispute continues.
19.	Another argument advanced by Mr. Cavanagh in relation to the facts was his submission that, as a matter of fact, the defendant's expectation was more specific than was set out in the voting paper.  Perhaps the high water mark of this submission was to be found in the minutes of an extraordinary meeting of the national executive committee of the defendant which took place on 24 July 2017, the first paragraph of which reads as follows:  
"The Thomas Cook company council had asked the NEC to authorise a ballot for discontinuous strike action which would cover a 12‑hour period commencing at 0300 hours UK local time on Friday, 8th September 2017."
20.	The minutes go on to record that that request was unanimously agreed to.  Mr. Strutton himself was to write in an e‑mail two days later, on 26 July 2017, as follows:  
"Ballot closes 18th August.  
First possible date of strike action 8th September.  
These are not cast in stone but is my best estimate at the moment."
21.	The information which was provided to members of the defendant union, together with the voting paper, included a document which contained "Frequently Asked Questions", one of which was as follows:  
"When would industrial action take place?  
It is not appropriate at this time to specify dates or duration of any action in advance of the ballot result being known.  However, we can state that, should we receive a strong mandate we anticipate action would commence in September.  Should any action be necessary, it would initially be measured in hours rather than days, but allowing for further escalation if required."
22.	In his witness statement, Mr. Strutton at a number of points deals with his and the defendant's state of mind when the voting paper was produced.  For example, in paragraph 50 he says:  
"I can state, having been present at each of the NEC meetings, that we did not have any crystallised or detailed plan as to the extent or timing of the action when we submitted the ballot paper to Thomas Cook on 26th July 2017."
23.	In so far as this issue of fact is concerned, therefore, there is a dispute as to what the relevant expectation of the defendant was at the time.  It seems to me likely that it was not as precise as Mr. Cavanagh invited me to conclude.  But, in any event, as I have said, the subsection does not specify the level of detail into which the union needs to go, provided that there is a statement in the voting paper which complies with the subsection.  In particular, the reference to the minutes of the meeting on 24 July really only serves to identify what was either an expected or a proposed date for the first industrial action.  But one thing which the subsection does not require the trade union to do is to identify specific dates on which industrial action is to be taken, rather than the period within which it is expected to take place.
24.	For all of those reasons, I dismiss this application