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BARRY IN COURT
July 2002

 

Case No: HC 02CO1433

Neutral Citation Number: [2002] EWHC 1642 Ch

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31st July 2002

Before :

THE VICE-CHANCELLOR

Between :

 

Godrich and Serwotka

Claimants

 

- and -

 
 

Public and Commercial Services Union and Reamsbottom

Defendants


Mr. John Hand QC and Mr. Damian Brown (instructed by Messrs Christian Fisher) for the Claimants

Mr. Alan Pardoe QC and Miss Suzanne McKie (instructed by Messrs A J Hows) for the second Defendant

Hearing dates : 16th, 17th and 18th July 2002

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Vice-Chancellor

Vice-Chancellor :

Introduction

  1. In May 1997 the second defendant ("Mr Reamsbottom") was elected to be the general secretary of The Civil and Public Services Association ("CPSA"). The rules of CPSA made no provision for the duration of his appointment but his contract of employment dated 1st June 1997 specified a term of five years. On 10th March 1998 CPSA and the Public Services Tax and Commerce Union ("PTC") were amalgamated under s.97 Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA") to form the first defendant to these proceedings, the Public and Commercial Services Union ("PCS"). The rulebook of PCS provided for the surviving joint general secretary of PTC, Mr Sheldon, and the general secretary of CPSA to be appointed as the joint general secretaries of PCS and in the event of one of them ceasing to serve for the appointment of the other as general secretary. Provision was also made for the post of general secretary to be filled by election and for the person so elected to serve for five years extended to normal retirement age if that would occur within five years of the end of the primary term.

  2. On 31st July 2000 the rulebook of PCS was duly amended so as to delete, with effect from 31st January 2001, the provision extending the term of office of the general secretary to his normal retirement date if it would occur within five years of the end of that term. The date on which the amendment took effect was also the normal retirement date for Mr Sheldon. Accordingly, as from 1st February 2001, Mr Reamsbottom was the general secretary of PCS. The only express provisions for the term of his office were those contained in his contract of employment dated 1st June 1997 and the amended rulebook of PCS. In each case the term so specified was five years only.

  3. In June 2000 Mr Reamsbottom commenced proceedings against PCS claiming to be entitled to remain in office as general secretary until his normal retirement age which was 4th April 2004. Such proceedings were compromised by an agreement dated 19th October 2000 ("the Compromise Agreement") whereby Mr Reamsbottom agreed that he would not stand in the impending election for the post of general secretary and that his term of office as general secretary would terminate on 31st May 2002 or such earlier date as might be agreed. Provision was thereby made for the respective functions and duties of Mr Reamsbottom and the general secretary elect until the termination of Mr Reamsbottom's appointment on or before 31st May 2002.

  4. The election of a general secretary proceeded and on 7th December 2000 the second claimant, Mr Serwotka, was declared to be the winner. Thereafter Mr Serwotka undertook and Mr Reamsbottom continued to perform the functions and duties prescribed by the Compromise Agreement.

  5. On 25th April 2002 the results of the elections of the President of PCS and membership of the National Executive Committee ("NEC") were declared. The first claimant, Ms Godrich, was elected President with effect from 18th May 2002, the end of the Biennial Delegate Conference which opened on 13th May. On 21st May Mr Reamsbottom, having informed Ms Godrich the day before of his intention to do so, convened a meeting of NEC for 23rd May. The agenda provided for the adoption of new standing orders, the composition of NEC Committees and Urgent Post Conference business. I shall describe the events of 23rd May in greater detail in due course. It is enough, at this stage, to record that Ms Godrich protested that the meeting had not been duly convened but those present purported to resolve, amongst other things, that the Compromise Agreement is unlawful and void.

  6. Since 31st May 2002 PCS has been paralysed by the competing claims of Mr Serwotka and Mr Reamsbottom to be the general secretary. The former contends that he was duly elected on 7th December 2000 and entitled to take up office on 31st May 2002 on the termination of Mr Reamsbottom's appointment. The latter insists that his term of office does not expire until his normal retirement date on 4th April 2004. These proceedings were instituted by Ms Godrich and Mr Serwotka on 30th May seeking declaratory relief to give effect to their contentions. Mr Reamsbottom has counterclaimed for declarations designed to secure the continuation of his office until 4th April 2004. Orders have been made granting both sides permission to proceed by way of derivative action under CPR 19.9(3) and (6) and an indemnity from PCS as to their costs. The evidence has been given by witness statements on which there has been no cross-examination.

  7. The principal issue is who is now the general secretary of PCS and how long is his term of office. The answer to that question depends on a number of other issues, namely:

    (a) the duration of Mr Reamsbottom's office as general secretary of PCS;

    (b) the effect of the amendment to the rulebook;

    (c) the validity and effect of the Compromise Agreement;

    (d) the validity of the election of Mr Serwotka;

    (e) the validity and effect of the meeting held on 23rd May 2002.

    All these issues arise against the background of TULRCA and the status of PCS as a trade union. It is convenient, therefore, to start with a description of the legislative and other background to a trade union's rules.

    Relevant principles of law applicable to Trade Unions

  8. S.10 TULRCA provides for the status of a trade union to be what the heading to the section calls "quasi-corporate". The description is apt. Subsection (2) precludes a trade union being treated as a body corporate except to the extent authorised by the provisions of Part I of the Act. But subsection (1) enables a trade union to make contracts, to sue or be sued or prosecuted in its own name. The doctrine of restraint of trade does not apply to its purposes and its property is to be vested in trustees with limitations on how it may be applied.

  9. Chapter VII provides for the amalgamation of trade unions or the transfer of engagements from one trade union to another. In the case of an amalgamation s.97(1) provides for the amalgamating unions to become one subject to the approval by the members of each amalgamating union of an instrument of amalgamation in accordance with the provisions of ss. 98 to 100. If the instrument is so approved then it becomes effective when registered with the Certification Officer under s.101. On such registration property held for each of the amalgamating unions vests without further assurance in the appropriate trustees for the amalgamated body.

  10. Under the Transfer of Undertakings (Protection of Employment) Regulations ("TUPE") the transfer from one person to another of an undertaking in the United Kingdom operates to transfer any contract of employment which would otherwise have been terminated by the transfer. The word "undertaking" is defined as including "any trade or business". It appeared from the written arguments of the parties that there was an issue whether TUPE applied to the amalgamation of two or more trade unions. Mr Reamsbottom contended that the word "transfer" in TUPE did not include an amalgamation and an "undertaking" did not comprehend a non-profit making organisation. The point was not pursued in oral argument because it was not considered by counsel for Mr Reamsbottom to be material.

  11. I am not convinced that the point is immaterial. TUPE was enacted to give effect to Council Directive 79/7/EEC and its successor Council Directive 2001/23/EC. Recital (3) to the latter states that it is necessary to provide for the protection of employees "in the event of a change in employer". By Article 1(a) the Directive is applied "to any transfer....to another employer as a result of a...merger. By Article 1(c) the Directive is applied "to public and private undertakings engaged in economic activities whether or not they are operating for gain." In my view it is clear from these provisions of the Directive that TUPE should, if possible, be interpreted to embrace amalgamations of trade unions so that contracts of employment which would otherwise have terminated are transferred to the union created by the amalgamation. I see no difficulty in making such an interpretation. It follows, in my judgment, that the contract of employment dated 1st June 1997 made between Mr Reamsbottom and CPSA was transferred to PCS on 10th March 1998.

  12. S.46 TULRCA requires a trade union to secure, regardless of any provision of the rules or any employment contract, that the position of general secretary is held by a person elected to it and that no person continues to hold it for more than five years without being re-elected to it. Ss.47 to 53 contain detailed provisions as to the conduct of such elections. S.54 provides that the remedy for failure to comply with the requirements of that chapter is by way of application to the certification officer under s.55 or the court under s.56. Ss.57 and 58 contain exemptions from the provisions of that Chapter for newly formed trade unions and for certain persons nearing retirement.

  13. S.57(1) provides that such provisions do not apply to a trade union until one year has elapsed since its formation by amalgamation or otherwise. Thus such provisions did not apply to PCS until 10th March 1999. S.57(2) applies to a person who by virtue of an election held the position of general secretary in one of the amalgamating unions immediately before the amalgamation and became the general secretary of the amalgamated union in accordance with the instrument of transfer. Such a person is entitled, without re-election, to retain the post of general secretary in the amalgamated union until the end of the period, whatever it may be, for which he would have been entitled to remain as general secretary of the amalgamating union. Thus Mr Reamsbottom was entitled to remain general secretary of PCS for the period he was entitled to remain the general secretary of CPSA by virtue of his election on 1st June 1997.

  14. S.58 provides an exemption from the requirement in s.46(1)(b) that no person may continue in office as general secretary without re-election for more than five years. The benefit of the exemption may only be obtained if the conditions specified in s.58(2) are satisfied. They require, amongst other things, that the person in question was originally elected at an election complying with the provisions of the Act, will reach retirement age within five years and is entitled under the rules of the trade union to continue in office without re-election until retirement age. Thus s.58 provides an exemption from the requirement for quinquennial elections in favour of one who is due to retire within the ensuing five years. It does not confer any right on a person satisfying the conditions to stay on until such retirement. S.59 allows a trade union to keep on a general secretary who was not re-elected for such period not exceeding six months as may reasonably be required to give effect to the results of the election.

  15. Finally in this section I should refer to certain well-known statements of principle relating to the interpretation of a trade union's rulebook. Thus in Heaton's Transport v TGWU [1973] AC 15, 100 Lord Wilberforce pointed out that

    "..trade union rule books are not drafted by parliamentary counsel. Courts of law must resist the temptation to construe them as if they were; for that is not how they would be understood by the members who are the parties to the agreement of which the terms, or some of them, are set out in the rule book, nor how they would be, and in fact were, understood by the experienced members of the [National Industrial Relations] court. Furthermore it is not to be assumed, as in the case of a commercial contract which has been reduced into writing, that all the terms of the agreement are to be found in the rule book alone..."

    As stated by Warner J in Jaques v AUEW [1987] 1 AER 621, 628

    "The effect of the authorities may I think be summarised by saying that the rules of a trade union are not to be construed literally or like a statute, but so as to give them a reasonable interpretation which accords with what in the court's view they must have been intended to mean, bearing in mind their authorship, their purpose and the readership to which they are addressed."

    The duration of Mr Reamsbottom's office as general secretary of PCS

  16. As will have been apparent from my summary of the facts, the contract of employment between CPSA and Mr Reamsbottom dated 1st June 1997 provided for a term of five years only. It would expire on 31st May 2002 some 22 months before Mr Reamsbottom's retirement on 4th April 2004. Further the rules of CPSA did not provide for such term to be extended to the latter date so that s.58 TULRCA could not apply at any time before the amalgamation was effected on 10th March 1998.

  17. Thus the case for Mr Reamsbottom depends, at least, on making good the allegations contained in paragraphs 6.3.5, 6.3.6 and 6.3.7 of his amended defence and counterclaim that:

    (1) it was agreed between the amalgamating unions, that is CPSA and PTC, that the two general secretaries and whichever of them became the general secretary on vacation of office by the other should serve until normal retirement age without seeking re-election, and

    (2) a term is to be implied in the rules of PCS that each of them would serve until normal retirement age without seeking re-election, so that

    (3) it was a term of Mr Reamsbottom's employment by PCS that he should be entitled to serve as general secretary until his retirement on 4th April 2004.

    These contentions are denied by the claimants. Accordingly it is necessary to examine the evidence bearing on them in some detail.

  18. PTC was formed on 1st January 1996 by the amalgamation of the National Union of Civil and Public Servants ("NUCPS") and the Inland Revenue Staff Federation ("IRSF"). PTC had two general secretaries, Mr John Sheldon, who had been elected in 1993, and Mr Clive Brooks, who retired before the amalgamation with CPSA took effect. As I have already mentioned Mr Reamsbottom had been elected as general secretary of CPSA in May 1997. By then the negotiations for the amalgamation with PTC to form PCS had already begun. The negotiations were carried on through a joint steering committee consisting of nominees of CPSA and PTC. The members of the joint steering committee included Mr John Hanson, the head of personnel and administration in CPSA and Ms Marion Chambers, then the president of CPSA. Mr Reamsbottom and Ms Chambers were principal negotiators for CPSA.

  19. The contemporary documents include an internal memorandum dated 14th November 1996 from, amongst others, Mr Hugh Lanning to the joint general secretaries of PTC, Mr Sheldon and Mr Brooks, concerning the Future Senior Secretariat Structure in the New Merged Union. The paper indicated that past policy pointed to a conclusion that only the post of general secretary would be filled by election because that was required by law. The authors suggested two options given that Mr Brooks would be taking early retirement. The first was in the following terms

    "The rule book states that there will be a general secretary subject to membership election, although in the case of both John Sheldon and Barry Reamsbottom (assuming he retires at age 55 as we expect), neither will, in fact, face the prospect of an election before retirement. Our first preference therefore is to say that only the general secretary will be subject to election and the reality is that the election will be held consequent on Barry Reamsbottom's retirement."

  20. On 31st January 1997 Mr Reamsbottom received an internal memorandum from another officer of CPSA providing him with a "merger update". He was told that the senior officers of PTC were agreed that in the transitional provisions attached to the rules of the amalgamated union joint general secretaries would be appointed on 1st January 1998 and that the senior officers of PTC would propose that the existing general secretaries should serve until normal retirement age. The author of the memorandum added that he understood that the senior officers of PTC would be firm on that position and would not be proposing elections until there were vacancies.

  21. At a special meeting of the National Executive Committee of PTC held on 3rd February 1997 the NEC considered the proposed rules for the new union and various outstanding issues. Amongst the latter was the position of senior full-time officers. The minutes record that

    "After a lengthy debate, the NEC ENDORSED the position which had been adopted by the PTC JSC that they were prepared to accept the principle of the election of the [general secretary and deputy general secretary] posts once the youngest incumbents had reached retirement age. It was AGREED that the members of the JSC would return to the negotiations to reach agreement on this basis. If such an agreement was not possible, a further meeting of the NEC would be convened to receive a further report of any developments for discussion."

    There is no evidence that any such further meeting was held.

  22. At the end of 1997, 2nd December in the case of Mr Reamsbottom and 17th December in the case of Mr Sheldon, the employment contracts between the two amalgamating unions, CPSA and PTC, and their general secretaries, Mr Reamsbottom and Mr Sheldon were executed.

  23. The agreement between Mr Reamsbottom and CPSA is dated 1st June 1997 and is expressed to be by way of variation of his contract of employment. It provides by clause 1 that Mr Reamsbottom, defined as the officer,

    "shall serve the Association in the capacity as General Secretary for a period of 5 years subject to the terms of this Agreement and shall perform all the duties of an officer in such capacity in accordance with the orders and directions from time to time resolved by the [NEC]".

    Clause 10 and 11 provide that

    "10. The minimum pensionable age is 55. At that age you may retire or be retired with, if applicable, the immediate payment of benefits under CPASPS. You may be kept on beyond that age, but this will be at the discretion of the Association and you should not therefore count on being able to stay beyond age 55.

    11. In the event of the Officer unsuccessfully standing for election as a Senior Full-Time Officer under rule 12 of the Rules of the Association, the Officer shall be entitled to take up the post as Assistant Secretary and rule 3.19(i) of the CPSAPS shall apply."

  24. By contrast the contract between Mr Sheldon and PTC provided that

    "The Officer's appointment is for a fixed term and...shall continue until the officer's 60th birthday which shall be the date of the officer's retirement from post.."

  25. The terms for the amalgamation of CPSA and PTC were approved by the members of each amalgamating union in ballots held in October 1997 and took effect when registered with the Certification Officer on 10th March 1998. Paragraph 9 of the Instrument stated that the method of electing the general secretary of the new union was contained in the Principal Rules and section 8 of the Supplementary Rules. Annexed to the instrument are the rules of PCS as approved by the members of CPSA and PTC.

  26. The rules so approved comprise 21 Principal Rules, 11 Supplementary Rules and three appendices. Appendix A contains Conference Standing Orders, Appendix B a Model Branch Constitution and Appendix C Transitional Provisions. For present purposes it is sufficient to refer to PR 11 and C 19. They were in the following terms:

    "PR11 The senior full-time Officers shall consist of a General Secretary, one or more Deputy General Secretaries, and one or more Assistant General Secretaries. The General Secretary post shall be filled by an election, conducted on the same basis as that laid down for membership ballots under these Principal Rules. A person so elected shall serve for a period of 5 years, subject to not having reached their normal retirement date (as specified under their contract of employment); where they are due to reach that date within 5 years of the end of their term of office, they shall be entitled to continue in office without standing for re-election until reaching it."

    The passage I have highlighted is that which was deleted by amendment with effect from 31st January 2001.

    "C19 The Senior Full-time Officers shall consist of the following posts, which shall be filled by the appointment on the effective date of those persons who as at the day before the effective date occupied the posts specified in this rule:

    (a) There shall be appointed as Joint General Secretaries (i) the PTC Joint General Secretary (John Sheldon) or, if there is no such post, the PTC General Secretary; and (ii) the CPSA General Secretary. In the event that one of the joint General Secretaries ceases to serve, the remaining Joint General Secretary shall be appointed as General Secretary.

    (b) There shall be appointed as Deputy General Secretaries: (i) the two PTC Deputy General Secretaries; and (ii) the CPSA Deputy General Secretary.

    (c) There shall be appointed as Assistant General Secretary, and as Joint National Treasurer, the PTC Assistant General Secretary.

    (d) There shall be appointed as Joint National Treasurer the CPSA General Treasurer (Keith Mills).

    Each person appointed under (b), (c) or (d) of this rule shall be entitled to serve in the post to which they have been so appointed until reaching their normal retirement age (as specified in their contract of employment) or (if earlier) 31 December 2000, without being required to stand for election, unless they are elected to another Senior Full-time Officer post of the Union."

  27. In May 1998 the Biennial Delegate Conference, which is by PR 2 the principal policy making body of PCS, resolved that:

    "This conference notes that the joint General Secretaries of PCS have been democratically elected by membership ballot of the two former unions, CPSA and PTC. Conference further notes that when John Sheldon retires in 1999/2000, the remaining general secretary Barry Reamsbottom will not have received the support of the majority of PCS members. As the law stands Barry Reamsbottom will never have to submit himself for re-election as he will be within 5 years of retirement when his "legally elect" term ends. Conference agrees that it is essential that every member has a say in who runs their new Trade Union when John Sheldon retires, to seek the endorsement for this continuing role General Secretary, by competing in an election for that post."

  28. Branch members were so informed by means of a newsletter in somewhat different terms. It summarised the resolution as calling on Mr Reamsbottom to consider resigning when Mr Sheldon retired in early 2001 so as to allow a contested election for the office of general secretary. Paragraph 62 merely stated:

    "Rule C19 says that, if one of the Joint General Secretaries ceases to serve, the other becomes sole General Secretary. Barry Reamsbottom has a contract of employment so he cannot be forced to resign, but he advised Conference that he will consider the position when John Sheldon retires."

  29. This remained the position until the Biennial Delegate Conference held in 2000. The part of PR 11 highlighted in paragraph 26 above was deleted by amendment with effect from 31st January 2001, the date on which Mr Sheldon retired.

  30. In connection with the proceedings issued by Mr Reamsbottom in June 2000, to which I have referred in paragraph 3 above, witness statements were made by Mr Reamsbottom, Mr Donnellan, then the president of PCS, Ms Marion Chambers, then the president of CPSA, and Mr Sheldon. Mr Reamsbottom stated that the proposed rules for the new union were in their final form in February 1997. He said that the proposal which was agreed and incorporated into the new rules was that

    "no election would take place until the second of us retired and that I would be sole general secretary until that time. This had two underlying reasons. Firstly that it would allow the new union time to settle down and create a period of stability before electioneering began for the election of a new general secretary. Secondly, if an election was held before the second of us retired, there would either have to be an election for another joint general secretary or I would have to submit myself to an election in which if re-elected I would have less than two years to serve."

    Mr Reamsbottom added that the minute referred to in paragraph 21 above accurately reflected the agreed position which was subsequently enshrined in PR 11 and C19.

  31. Ms Chambers agreed with Mr Reamsbottom. In her witness statement made on 11th August 2000 she said that the minute of the meeting of NEC of PTC held on 3rd February 1997 reflected her understanding of the position reached in the negotiations regarding the position of the general secretaries. She emphasised that at all the meetings she attended there was no disagreement about the arrangements which were accepted on all sides as entitling Mr Reamsbottom to remain in post until his retirement in April 2004.

  32. Mr Donnellan, who was the President of PTC at the time and present at the meeting to which the minute refers disagreed. He considered that after the retirement of Mr Sheldon C19 would have served its purpose and have no continuing effect so far as Mr Reamsbottom was concerned. He contended that the contract of employment dated 1st June 1997 was transferred to PCS by TUPE and remained the current contract. He pointed out that under that contract the duration of the office was five years only and did not entitle Mr Reamsbottom to stay on until his retirement. I was invited to disregard this evidence as being contrary to the approved minute of the special meeting of the NEC of PTC at which Mr Donnellan had been present.

  33. Mr Sheldon stated that he thought that the practical effect of the draft rules would be to allow Mr Reamsbottom and himself to serve until their respective retirement dates without re-election "if our contracts of employment so provided". He and his fellow officers of PTC always understood the operative rule to be PR 11.

    "We understood that transitional rule C19 merely determined what happened on the effective date of the merger. We never believed that C19 taken in isolation conferred any exemption from re-election. We did not believe that C19 determined the terms of office of the joint general secretaries at all. PR 11 alone related to our terms of office, subject, of course, to any specific agreement in our individual personal contracts."

  34. A number of further witness statements have been made in connection with this action. Mr Hanson, to whom I have referred in paragraph 18 above, states in paragraph 9 of his witness statement dated 10th July 2002, that it was his understanding, and that of other members of CPSA and PTC, that it was not intended that any of the incumbent Senior Full-time Officers should stand for election to their posts. Mr Lanning, to whom I have referred in paragraph 19 above, states in his witness statement made on 21st June 2002 that he was not aware of any agreement, formal or otherwise covering the position of senior officers apart from the Instrument of Amalgamation. Nor was he aware of any contractual provision to give Mr Reamsbottom the term of office for which he contends. He suggests that his evidence on those two points is significant because he was heavily involved in the negotiations for the amalgamation and was himself responsible after the amalgamation for reviewing the contractual arrangements of all senior officers of PCS. Mr Donnellan, to whom I referred in paragraph 30 above, in paragraphs 3 and 4 of his witness statement dated 26th June 2002, accepts that there may have been discussions between Mr Reamsbottom and Mr Sheldon concerning the position of full time officers in the amalgamating unions and that some members of PCS believed that Mr Reamsbottom was entitled to remain in office until normal retirement age. He contends that the conclusions of the discussions between Mr Reamsbottom and Mr Sheldon were never approved by the NEC of either union or embodied in the instrument of amalgamation. He maintains that the belief to which he refers was mistaken because PR 11 did not govern Mr Reamsbottom's term of office and anyway it was amended at the Biennial Delegate Conference in 2000. In paragraph 1 of his second witness statement made in July 2002 Mr Reamsbottom states that it was his understanding that there was an agreement between CPSA and PTC that he should continue to be general secretary of PCS until his retirement in April 2004.

  35. As I have mentioned there was no cross-examination of any of these witnesses. Accordingly any differences between their various accounts can only be resolved by reference to its consistency with the few contemporary documents to which I have referred and any inherent probability.

  36. It is quite clear that there were discussions between Mr Sheldon and Mr Reamsbottom concerning the terms on which they should serve as general secretary. I accept that those discussions included the extension of the period of office to normal retirement date. That was the basis on which the negotiations on behalf of PTC proceeded as indicated in the minute of the NEC meeting held on 3rd February 1997 to which I have referred in paragraph 21 above. There is no evidence of any subsequent meeting of the NEC of PTC which was envisaged to be necessary if agreement on this point could not be reached with the NEC of CPSA. An agreement as alleged is consistent with the witness statements of Mr Reamsbottom, Ms Chambers and Mr Hanson. It is also consistent with the view expressed in the resolution passed at the Biennial Delegates Conference held in May 1998 to which I have referred in paragraph 27 above.

  37. But it is also necessary to have regard to the contrary evidence. First, there is no minute of any meeting of the NEC of CPSA corresponding to that of PTC held on 3rd February 1997. Second, it is not suggested that the instrument of amalgamation clearly implements the alleged agreement. Third, such an agreement is inconsistent with the form of employment contract signed by Mr Reamsbottom on 2nd December 1997. Fourth, there is no evidence to suggest that the review of the employment contracts carried out by Mr Lanning after the amalgamation considered any amendment to clause 1 of Mr Reamsbottom's employment contract. Fifth, the finding of any such agreement would be inconsistent with the witness statements of Mr Donnellon, Mr Sheldon and Mr Lanning.

  38. I am not satisfied on the balance of probability that there was any agreement between the amalgamating unions as to the terms of office of the general secretaries before the instrument of amalgamation became effective on 10th March 1998. Accordingly I reject the contention I have summarised in paragraph 17(1) above. Equally I am not satisfied that there was any agreement between PCS and Mr Reamsbottom after the instrument of amalgamation took effect whereby clause 1 of his employment contract was varied.

  39. There remain the issues regarding the interpretation of PR 11, C19 and Mr Reamsbottom's contract of employment referred to in paragraph 17(2) and (3) above. The claimants contend that none of them entitled Mr Reamsbottom to remain in office after 31st May 2002. They submit that PR 11, in its original form, did not apply because Mr Reamsbottom was not elected to the post of general secretary of PCS, C19 never applied because he came within subparagraph (a) not any of those to which the concluding passage applies and clause 1 of Mr Reamsbottom's contract is quite inconsistent with any extension of the term of five years to his normal retirement date.

  40. It is necessary to consider the position under the rules separately from the position under Mr Reamsbottom's employment contract. With regard to the rules of PCS, counsel for Mr Reamsbottom submits that on their proper construction Mr Reamsbottom was entitled to the benefit of the concluding words in PR 11 in its original form. He submits that such a conclusion is also warranted by necessity because otherwise Mr Sheldon would have been prevented from serving until his retirement notwithstanding his entitlement under his contract of employment by virtue of s.46 TULRCA.

  41. The effect of PR 11 and C19 when taken together is that elected general secretaries and all deputy or assistant general secretaries are entitled to remain in office until normal retirement date. It would be odd if general secretaries appointed under C19 were not. Given the principles of interpretation to which I have referred and the fact that C19 is a transitional provision I agree with the submission of counsel for Mr Reamsbottom that the appointment of general secretary under C19 is on the terms of all the Principal and Supplementary Rules, including PR 11. In other words a general secretary appointed under C19 is to be treated for the purposes of PR11 as though he had been elected. For that reason I agree with the contention referred to in paragraph 17(2) above, not as a matter of implication but on the proper construction of the rules as they stood.

  42. In these circumstances there is no need to justify an implication by reference to the test of either necessity or obviousness as embodied in "the officious bystander". But in case this case goes further I should refer briefly to the argument from necessity. It arises from the position of Mr Sheldon. He had been elected to the position of general secretary of NUCPS in 1993. That union had merged with IRSF on 1st January 1996 to form PTC. In accordance with s.57(2) TULRCA Mr Sheldon was entitled to remain general secretary of PTC to the end of the period for which he was entitled to serve as general secretary of NUCPS. If, as submitted by counsel for the claimants, s.57 does not operate on a second amalgamation to preserve the general secretary's entitlement arising on the first then Mr Sheldon was not entitled to remain in office until his retirement on 31st January 2001 unless the rules of PCS so provided. This conclusion is said to arise from the terms of s.58(2)(d) TULRCA which requires, as one of the conditions for exemption from the requirement for quinquennial elections imposed by s.46(1)(b), that "under the rules of the union [he is entitled] to continue as the holder of the position until retirement age without standing for re-election".

  43. Counsel for the claimants submits that it is immaterial to the position of Mr Sheldon whether or not the provisions of s.58(2)(d) are satisfied because he could not satisfy the requirement of s.58(2)(a) that he held the position of general secretary of PCS by virtue of having been elected at an election complying with the other provisions of TULRCA. As he points out Mr Reamsbottom can derive no benefit from s.57(2) because he was not entitled to serve as general secretary of CPSA for more than the five-year term. Nor would the provisions of s.58(2) give rise to any necessity so far as Mr Reamsbottom is concerned unless his contract of employment entitled him to remain in post until his normal retirement date.

  44. It is not necessary for me to reach any concluded view on these issues. My provisional view is that the argument from necessity would fail because the implication sought would not solve the problem said to give rise to the necessity. In other words satisfaction of the requirement of s.58(2)(d) is insufficient because neither Mr Sheldon nor Mr Reamsbottom could also comply with s.58(2)(a).

  45. Mr Reamsbottom's contract of employment appears to me to be entirely unambiguous. Clause 1 specifies a fixed period of five years. Any suggestion that it might be implied that Mr Reamsbottom could extend it to his normal retirement age if he wished sits uneasily with the terms of clause 10. Further given my conclusion on the absence of any agreement between the amalgamating unions as to the term of office of the general secretaries I can see no justification for such an implication. It would be neither necessary nor obvious. If it were either then it would be one of the points Mr Reamsbottom or Mr Lanning might be expected to raise in the review of the employment contracts undertaken by the latter after the amalgamation. There is no evidence that either of them did so.

  46. The only basis for implying into Mr Reamsbottom's contract of employment a right to continue until his normal retirement age in April 2004 is PR 11. In my view that is not enough. The concluding words of the rule are evidently directed to the conditions contained in s.58(2) TULRCA, in particular (d). But those conditions give rise to an exemption from the requirement of quinquennial election not a right to stay on beyond the period of employment. In any event they were deleted by amendment before the term of five years expired on 31st May 2002. Accordingly I reject the contention referred to in paragraph 17(3) above.

  47. For all these reasons I conclude that Mr Reamsbottom's term of office as general secretary of PCS ended on 31st May 2002 as provided by his contract of employment dated 1st June 1997. Either that contract was transferred to PCS by TUPE or it provided the terms of the contract of employment to be implied between PCS and Mr Reamsbottom on and after 10th March 1998. Either way it has now come to an end.

    The effect of the amendment to PR 11

  48. The validity of the amendment is not in doubt. It could not, of itself, cause a variation to the terms of Mr Reamsbottom's employment unless those terms entitled him to remain in office until his normal retirement date. In the light of my conclusion that Mr Reamsbottom was not contractually entitled to remain until then the amendment to PR 11 has no bearing on the issues in this case.

    The validity and effect of the Compromise Agreement

  49. As I have already mentioned Mr Reamsbottom started proceedings in June 2000 claiming that his appointment as general secretary of PCS entitled him to remain in office until normal retirement date in April 2004. This was in the context of the resolutions passed at the Biennial Delegates Conference in May 2000 amending PR 11 with effect from 31st January 2001 and requiring an election to be held for the post of general secretary not later than 31st December 2000.

  50. Nominations of candidates for election to the post of general secretary closed on 20th October 2000. On 19th October 2000 Mr Reamsbottom entered into an agreement with PCS for the compromise of his proceedings. The agreement was conditional on Mr Reamsbottom not accepting nomination nor exercising any right to stand in the impending election for general secretary of PCS. That condition was satisfied. Clauses 1 and 2 contained obligations of Mr Reamsbottom not to seek or accept nomination for or to stand in any election for the post of general secretary and to discontinue the proceedings on specified terms. By clause 3 Mr Reamsbottom agreed that his employment as general secretary would cease on 31st May 2002 or on such earlier date as might be agreed. Clause 4 provided that the terms of his employment until such cesser were those in his contract of employment dated 1st June 1997 as thereby amended. By clause 5 Mr Reamsbottom agreed that the successful candidate in the forthcoming election should, until the termination of his own employment, carry out specific functions so as to ensure a smooth transfer when Mr Reamsbottom left. In consideration of and conditional on performance by Mr Reamsbottom of all those obligations PCS agreed in clause 6 to enhance his pension and pay him compensation for leaving before 4th April 2004. By clauses 7 and 8 Mr Reamsbottom agreed not to take any proceedings for unfair dismissal, redundancy or discrimination. In clause 9 Mr Reamsbottom agreed to accept the agreement in full and final satisfaction of all claims he might have against PCS, including the amendment to PR 11 and the current election for general secretary. In clause 10 Mr Reamsbottom acknowledged that he had received legal advice before signing the Compromise Agreement.

     

  51. On the face of it the Compromise Agreement settled all issues between PCS and Mr Reamsbottom and operated to terminate his term of office as general secretary on 31st May 2002. It is contended for Mr Reamsbottom that the election for the post of general secretary conducted in 2000 was unlawful and a nullity. It is also suggested that the continuance of Mr Reamsbottom's employment after such election until 31st May 2002 infringed s.59 TULRCA.

  52. For the purpose of dealing with the validity of the Compromise Agreement I will assume that the first point is established. On that footing it is submitted for Mr Reamsbottom that the Compromise Agreement is an entire agreement, that he was unable to comply with the obligations undertaken by him with the consequence that PCS cannot rely on it as against him.

  53. I do not agree. The obligations undertaken by Mr Reamsbottom were not conditional on the election being valid. Let it be assumed that the election was unlawful and a nullity; that does not mean that the Compromise Agreement is avoided for illegality or want of consideration. Each obligation undertaken by Mr Reamsbottom was one which he was competent to undertake. There is no suggestion that PCS has not performed its obligations under clause 6. I can see no reason why PCS should be disabled from holding Mr Reamsbottom to his contract. Accordingly, even if, contrary to my conclusions on the terms of his employment, Mr Reamsbottom had been entitled to remain in office until his normal retirement date in April 2004 by the Compromise Agreement he validly agreed that his contract should terminate on 31st May 2002.

     

  54. The second point cannot have the effect for which Mr Reamsbottom contends. It can only arise if the election was valid. Mr Reamsbottom was entitled to continue as general secretary until 31st May 2002 in any event. This was his contractual entitlement, it did not infringe the quinquennial requirement of s.46(1)(b) so that there is no need to resort to s.59 TULRCA. I see no reason why in that event he should have been inhibited in any way from discharging all the obligations imposed on him by the Compromise Agreement.

  55. For all these reasons I conclude that the Compromise Agreement was valid and binding on Mr Reamsbottom when made and remains binding unless the resolution passed at the purported meeting held on 23rd May 2002 was valid and effective.

    The validity of the election of Mr Serwotka

     

  56. Supplementary Rule 8.4 and 8.5 provide that

    "8.4 In the event of a vacancy in any Senior full-time Officer post filled by election in accordance with principal rule PR11, the NEC shall make the necessary arrangements for an election to be held, including the appointment of an Independent Scrutineer. The vacancy shall be advertised, and open to members of the Union. The NEC shall, after consulting the Independent Scrutineer, approve regulations for the conduct of the elections which shall be published to Branches and be binding on all members. An election address of not more than 1,000 words (including biographical information) shall be permitted.

    8.5 Those elected shall be appointed by the NEC on such terms and conditions as the NEC may determine."

  57. Mr Reamsbottom contends that the power to hold an election for the post of general secretary arises only if there will be a vacancy in that post at the time the result of the election is to be declared. The result of the election was declared on 7th December 2000 but on any view Mr Reamsbottom's term of office would not come to an end until 31st May 2002.

  58. It is also submitted that Mr Reamsbottom could not continue in office after 7th December 2000 because he was not elected and s.59 TULRCA could not apply. But, as I have already pointed out, this point can only arise if the election was valid and in that event is misconceived.

  59. I was referred to Macreadie v CPSA (Vinelott J 15th July 1986 unreported) and Wise v USDAW [1996] IRLR 609. In Macreadie v CPSA the general secretary resigned to take up another appointment. The election of his successor was close and gave rise to a number of objections. The need to investigate the complaints necessitated the postponement of the appointment of the new general secretary. Macreadie, who was the successful candidate, contended that there was no power to postpone his appointment. His contention was that because the purpose of an election is to fill a vacancy and because there was a vacancy at the time his election was declared it took immediate effect. This was rejected by Vinelott J on the grounds that under the rules the terms and conditions of employment of the general secretary had to be agreed with NEC. Vinelott J said

    "If it is once accepted that the effective date of the appointment of general secretary is a date determined by the NEC as a date on which he is to take office, it must, as I see it, follow that the NEC, provided that they act in good faith, that is for the sole purpose of promoting the policies and interests of the members of the Association, and reasonably and diligently, are entitled to defer the taking up of the appointment while inquiries are made into the circumstances of an election."

  60. In Wise v USDAW the union brought forward an election but deferred declaring the result in order to obtain a subsidy. Chadwick J held that the postponement of the declaration was contrary to the rules because the power to determine when the election was held was fettered by the rule entitling each member of the NEC to hold office for three years.

  61. In this case the claimants contend that the only fetter on the power or duty to hold an election is that the decision as to its timing is reached in good faith as in Macreadie. For Mr Reamsbottom it is contended that the words of SR 8.4 "in the event of a vacancy" fetter the power or duty in regard to elections as in Wise. Counsel for Mr Reamsbottom accepts that the election may be called before the vacancy has arisen but submits that the declaration of the result, which completes the electoral process, must coincide with the termination of the office of the outgoing general secretary. He accepts that such a construction may give rise to an interregnum but contends that the provisions of s.59 TULRCA enable the outgoing general secretary to continue for the time being.

  62. I do not accept the submissions of counsel for Mr Reamsbottom. The normal meaning of the word vacancy, as indicated in the Oxford English Dictionary to which I was referred, connotes an unoccupied office or post, as exemplified by a quotation from Macaulay "How could there be an election without a vacancy?". But it does not follow, as counsel submitted, that in the context of the rules of PCS an election cannot be called in anticipation of a vacancy. SR 8.4 shows clearly that in making the necessary arrangements NEC anticipates a vacancy. SR 8.5 shows, as in Macreadie, that the vacancy is not filled automatically on the declaration of the result of the election. Accordingly the rules recognise that there will be an interval between the declaration of the result of the election and the filling of the vacancy.

  63. But I do not accept the submission of counsel for the claimants that the only fetter on the powers of NEC is the requirement to act in good faith as in Wise. NEC must also exercise the powers conferred on them by SR 8.4 in furtherance of the purpose for which the powers are conferred. The purpose of an election is to provide the electorate with an opportunity to choose between alternative candidates for a particular post. If the choice is to be both informed and relevant to the post it must be made reasonably contemporaneously with the vacancy.

  64. In this case the vacancy would arise on 31st May 2002. The result of the election was declared on 7th December 2000. Thus there was a little over 17 months between the two. If the choice of date had been entirely a matter for NEC I would have been inclined to conclude that it was too far in advance of the vacancy to be a valid exercise of the power conferred by SR 8.4. But the Biennial Delegate Conference is, by PR2, the principal policy-making body of PCS. By PR8 NEC is bound to observe policies determined by the Delegate Conference. Further, by PR18(b), a membership ballot, by which the general secretary is elected pursuant to PR11, must be held where so requested by Delegate Conference. In this case the Biennial Delegate Conference had resolved in May 2000 that an election for the post of general secretary should be held not later than 31st December 2000 for a vacancy anticipated on 1st June 2002. The proposition was put to the membership as a whole in relation to the amendment to PR 11 and approved by 96.6% of those who took part in the postal ballot.

  65. In all these circumstances I conclude that the exercise by NEC of the powers conferred by SR 8.4 in arranging for an election in December 2000 for the post of general secretary which would arise on 1st June 2002 was valid and effective. No other objection to the election of Mr Serwotka has been raised. Accordingly, in my judgment, he was validly elected to the post of general secretary with effect from 1st June 2002 and I will make a declaration to that effect.

    The validity and effect of the meeting held on 23rd May 2002

  66. At the elections held in April 2002 Ms Godrich was elected the president of PCS with effect from Saturday 18th May 2002. By then Mr Sheldon had retired and Mr Reamsbottom was the sole general secretary. The functions to be performed by him and Mr Serwotka until 1st June 2002, when the latter would take over from the former, were laid down in the Compromise Agreement. At the same time members of the NEC for the ensuing two years were also elected.

  67. The Supplementary Rules provide, so far as relevant to this issue:

    "7.10 The president shall preside at all NEC meetings, put such motions to the vote as may be seconded, and be the judge of order. The President may speak and vote on all questions. A decision of the President shall be complied with immediately, unless formally challenged by an NEC member. Any challenge shall be decided without debate and only upheld if supported by two-thirds of those present and voting. The President shall sign all minutes of NEC meetings once confirmed."

    "7.12 In the President's absence the Senior Vice-President shall preside, and act with the authority of the President."

    "7.19 The NEC shall meet not fewer than 4 times a year, and at such other times as either (a) the President or General Secretary considers necessary, or (b) a majority of NEC members request in writing (in such case only to deal with the matters specified), or (c) the NEC decides under its standing orders. The quorum for any meeting of the NEC or its Committees (except for the National Disputes Committee) shall be a majority of the voting members."

    "8.3 The General Secretary may:

    (a) Convene (after consulting the President) meetings of the NEC and its Committees.

    (b) Attend any meetings of the Union or of its subsidiary parts.

    (c) Employ staff as necessary on terms and conditions, and on the basis of procedures, approved by the NEC.

    (d) Delegate the rights and duties of the General Secretary to any other Full-time Officer."

  68. Though there are differences of emphasis and opinion, the witness statements disclose no real dispute about what happened in the period from Monday 20th to Thursday 23rd May 2002. On Monday 20th May Mr Reamsbottom wrote a memorandum to Ms Godrich indicating his intention in accordance with rule 7.19 to convene a one-day meeting of NEC on Thursday 23rd May at 11.30am. He stated that the agenda would be

    1. Apologies.

    2. Matters not covered elsewhere in the agenda notified to the general secretary in advance.

    3. Priority matters for decision:

    (i) adoption of the new standing orders,

    (ii) composition of the NEC sub-committees,

    (iii) urgent post-conference business.

    Mr Reamsbottom asked Ms Godrich to arrange with the general secretary elect's office to have the agenda issued that day and to advise the NEC members of the meeting.

  69. Ms Godrich received the memorandum on Tuesday 21st May. On that day Mr Reamsbottom issued a further memorandum to the members of the NEC purporting to convene a meeting of the NEC on 23rd May at 11.30 am with the same agenda. On receipt of the memorandum of the day before Ms Godrich replied to Mr Reamsbottom. She referred to SR 8.3(a) and complained that Mr Reamsbottom had not consulted her. She voiced her concern at the generality of item 2 on the proposed agenda and asked what was proposed. She protested that Mr Reamsbottom had not given adequate notice of the meeting and told him that she and Mr Serwotka had decided to convene a meeting of NEC for 10th June.

  70. Mr Reamsbottom responded the same day. He contended that he was not required by SR 7.19 to consult Ms Godrich at all but his memorandum of 20th May was enough anyway. He made it plain that he did not agree to any of the rest of the answer from Ms Godrich. Mr Reamsbottom also wrote to Mr Serwotka, with a copy to Ms Godrich, berating him for his apparent lack of knowledge of the rules and for criticising the staff. Mr Reamsbottom suggested that an apology from Mr Serwotka would be appropriate.

  71. On Wednesday 22nd May Mr Reamsbottom issued a number of memoranda to members of NEC. The first, NEC.42/5/02, entitled NEC standing orders, indicated that an issue for the meeting the following day would be the approval of standing orders for the conduct of meetings of NEC for 2002 to 2004 in the form of the draft enclosed therewith. The second, NEC.42/6/02, entitled NEC Committees indicated that another issue for the meeting the following day was the determination of the composition of committees for which a proposal was attached. The third, NEC.42/8/02, drew to the attention of members of NEC the recent correspondence between Mr Reamsbottom and Ms Godrich.

  72. On Thursday 23rd May Ms Godrich attended the premises of PCS at about 10.35am where she received copies of NEC.42/5/02 and NEC.42/6/02. At about 11.10 am she gave to Mr Reamsbottom and the other NEC members then present a letter which stated that on the advice of Queen's Counsel she demanded proper consultation as required by SR 8.3 concerning the purpose of the meeting and the specific agenda items to be considered. She stated that the proposed meeting was outwith the rules of PCS and invalid. On going up to the boardroom she saw Mr Reamsbottom and about 20 members of NEC assembling in room 4.4. After she took the president's chair in the boardroom at 11.28 am Mr Reamsbottom and those 20 members joined her and the other members of NEC who had already arrived.

  73. It is common ground that there was then a good deal of shouting and confusion. Mr McCann, an employee of PCS, joined the meeting and on Mr Reamsbottom's instructions distributed a further memorandum, NEC.42/4/02, to those present. The subject of this memorandum was the election of the general secretary. Attached to it was an opinion of leading counsel for Mr Reamsbottom. In the light of that advice Mr Reamsbottom recommended that NEC endorse the following

    "1. Barry Reamsbottom remains in office as General Secretary in accordance with the terms of the Instrument of Amalgamation until he reaches the normal retirement age of 55 in April 2004.

    2. The agreement entered into between Barry Reamsbottom and PCS dated 19th October 2000 is unlawful and void.

    3. The election of a General Secretary held in October 2000 was unlawful and in breach of the PCS Rules and is void.

    4. The General Secretary, Barry Reamsbottom, is authorised to enter into discussions with Mark Serwotka with a view to either agreeing upon terms and conditions under which he should be appointed as a full-time officer of PCS or upon terms on which Mr Serwotka will leave the employment of PCS and return to work in the Civil Service....

    5. There shall be an election in Spring 2004 to fill the vacancy for the post of General Secretary which will arise upon the retirement of Barry Reamsbottom."

  74. At 11.30 am Ms Godrich informed those present that NEC was not in session. She read out the letter referring to the advice of Queen's Counsel and offered to meet with Mr Reamsbottom so that proper consultation might take place. Mr Reamsbottom then stood up, declared the meeting to have been properly convened under SR 7.19 and invited Mr McGowan, a vice-president to take a vote to approve that proposition. This was approved by a majority which also approved the election of Mr Euers, another vice-president, to the chair. There was then a 20 minute adjournment to enable Ms Godrich to ascertain if the advice she had received was in writing.

  75. When the meeting reconvened Ms Godrich confirmed that the letter she had read out had been settled by leading counsel. At that point Mr Euers proposed and those present agreed to move back to room 4.4. In room 4.4 the confusion continued. Ms Godrich reiterated that the meeting had not been properly convened and that Mr Euers was acting outside the rules in purporting to chair it. Mr Euers rejected that contention and proceeded to move the adoption of NEC.42/5/02, NEC.42/6/02, NEC.42/4/02. Each of them was approved by a majority of those present.

  76. In those circumstances the claimants contend that the meeting was not properly convened because there had been no consultation as required by SR 8.3(a). They rely on the decision of the Divisional Court (Glidewell LJ and Hidden J) in R v British Coal Corporation, ex parte Price [1994] IRLR 72 at para 24 adopting the dictum of Hodgson J in R v Gwent CC, ex parte Bryant [1988] Crown Office Digest 19 that fair consultation means (a) consultation when the proposals are still at a formative stage, (b) adequate information on which to respond, (c) adequate time in which to respond and (d) conscientious consideration by an authority of the response to consultation.

  77. Counsel for Mr Reamsbottom submits that the power to convene the meeting is in SR 7.19. He suggested that such power is free from the conditions imposed by SR 8.3(a). In that context he relied on the provisions of the Standing Orders adopted for meetings of NEC held in 2000 to 2002. Accordingly he contends that SR 7.19 enables the general secretary to convene the meeting without any consultation at all. I do not agree. First the standing orders adopted by the NEC cannot affect the construction of the Rules which the NEC has no power to alter. Second, SR 7.19 deals with the frequency of meetings not with who and how they are to be convened. In so far as it impliedly confers any power on the general secretary to convene a meeting for a specific date, which I doubt, such power must be exercised by the general secretary in accordance with the specific and express requirements of SR 8.3. Those provisions require the general secretary to consult with the president. It is obvious that there was no such consultation. The business reflected in the agenda circulated by Mr Reamsbottom was not so urgent as to preclude proper consultation with the president. It follows that the meeting which occurred on 23rd May 2002 was not a meeting of the NEC and none of the resolutions passed at such gathering are resolutions of the NEC.

  78. Even if the meeting had been validly convened and the resolutions to which I have referred in paragraph 73 properly passed they would have been devoid of effect. Counsel for Mr Reamsbottom accepted that resolutions 1,3,4 and 5 were outside the powers of the NEC anyway. But he contended that resolution 2 was authorised by PR 8, SR 2.1(f) and SR 7.9(h).

  79. Those rules are in the following terms

    "PR8 The management and control of the Union, and the handling of its whole affairs, shall be vested in the National Executive Committee ("NEC"). The NEC shall conduct its affairs in accordance with: (a) the Rules of the Union; and (b) the policies determined by Delegate Conference or by membership ballot."

    "2.1 Without prejudice to any other rule, the Union may in furthering its Objects:

    [(a) – (e)]

    (f) Take any action which the NEC considers will further any of the Objects."

    "7.9 The NEC shall (subject to supplementary rules 4.1, 5.1, 5.2 and 5.13) have authority to exercise those powers in supplementary rule 2.1, and without prejudice to the generality of those powers shall further have the powers to:

    [(a) – (g)]

    (h) Engage and discharge fill-time Officers, determine their pay and terms and conditions of employment, and enter into any agreement with them it considers appropriate."

  80. It is submitted that the Compromise Agreement dealt with the discharge of a full-time officer, namely Mr Reamsbottom and was therefore within the power of NEC to set aside. But the resolution did not purport to set it aside; it declared it to be unlawful and void. The NEC of PCS is not a court of law. There can be no doubt that it has no power to make any such declaration.

  81. It was also suggested that individual standing orders (SO 1.3, 7.1, 9.1 and 12.1) applicable to meetings of the NEC in 2000 to 2002 are inconsistent with various rules (SR 7.10, 7.19 to 7.21) and so invalid. As I have held the meeting as a whole to be invalid these points do not arise. Nor is there any present issue on the standing orders proposed for adoption in NEC.42/5/02.

    Summary

  82. For all these reasons I conclude that

a) Mr Reamsbottom ceased to be the general secretary of PCS on 31st May 2002;

b) Mr Serwotka was validly elected to the post of general secretary of PCS with effect from 1st June 2002;

c) The purported meeting of the NEC of PCS held on 23rd May 2002 had not been validly convened and the business purportedly conducted thereat was of no effect;

d) The Compromise Agreement is and always has been valid and binding on the parties.

I invite counsel to agree a form of order to give effect to these conclusions and such other consequential matters as may arise. I will hear further argument on the form of the order and on such other matters as counsel wish to raise.