Consent Order

22 June 2016

Claim No: HQ16X01325

In the High Court of Justice, Queen's Bench Division, between GOVIA THAMESLINK RAILWAY LTD, Claimant/Respondent, andTHE ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS AND FIREMEN, Applicant/Defendant.

CONSENT ORDER

UPON judgment having been entered for the Claimant AND UPON the joint application of the parties AND BY CONSENT, IT IS ORDERED THAT:

1. The remedies hearing listed for a 3 day trial window commencing 27 June 2016 be vacated.

2. All further proceedings in this claim be stayed upon the terms set out in the Schedule hereto except for the purpose of carrying such terms into effect.

3. The Defendant to pay the Claimant’s costs of the proceedings on the standard basis to be subject to a detailed assessment if not agreed. For the avoidance of doubt, the said costs include, inter alia, the costs of and occasioned by the injunction proceedings before Langstaff J and Supperstone J, the Defendant’s cross-application heard by Supperstone J, the costs of and occasioned by the Claimant’s application for specific disclosure, and the costs of and occasioned by the Claimant’s application before Edis J.

4. The Defendant to pay the Claimant the sum of £250,000 on account of costs within 21 days of the seal date of this Order.

Dated this 22nd day of June 2016.

SCHEDULE

(1) For the avoidance of doubt, the terms set out in this Schedule have contractual force as between the Claimant and the Defendant.

(2) The Defendant accepts that the Claimant is contractually entitled to require drivers employed on the terms and conditions as described in paragraphs 11-14 of the Amended Particulars of Claim to drive 12 car DOO(P) on Gatwick Express Services.

(3) The Defendant accepts that the collective agreements between it and the Claimant and its predecessors (including the 2009 and 2013 agreements) do not preclude drivers employed by the Claimant being contractually obliged to drive 12 car DOO(P) trains on its Gatwick Express Services.

(4) The Defendant undertakes that it will not, whether in reliance upon the ballot which closed on 23 May 2016 or in the future (whether in reliance upon any subsequent ballot or not) induce relevant members to take industrial action of any nature (including refusal to operate DOO(P) trains in formations up to and including 12 cars) where the reason for the inducement is wholly or partly because relevant members are required to operate the Claimant’s Gatwick Express Services DOO(P) trains in formations up to and including 12 cars. ‘Relevant members’ are members of the Defendant employed as drivers by the Claimant. The Defendant agrees that the Claimant would be entitled to obtain appropriate injunctive relief to restrain the Defendant from so doing.

(5) The Defendant undertakes that it will not call or induce its members to take industrial action, of any nature, pursuant to or in reliance upon the Defendant’s ballot which closed on 23 May 2016. The Defendant agrees that the Claimant would be entitled to obtain appropriate injunctive relief to restrain the Defendant from so doing.

(6) The Defendant agrees that were the Defendant’s members to take industrial action pursuant to the Defendant’s ballot which closed on 23 May 2016, the Defendant would not benefit from any statutory immunity from suit in respect of such action by reason both (i) of the application of ss 228 and 228A of TULR(C)A,and (ii) of the application of s233(3)(a) of TULR(C)A.

(7) The Defendant confirms that it has not, before the time when this Order is sealed,called or induced its members to take industrial action, of any nature,pursuant to or in reliance upon the ballot of 23 May 2016, and agrees that the Claimant would be entitled to obtain appropriate injunctive relief to restrain the Defendant from so doing.

(8) The Claimant will not pursue further against the Defendant its claims in these proceedings for injunctive relief, damages and costs (save in respect of the order for costs made in the orders herein and referred to at (11) and (12),below, or in respect of breach by the Defendant of any part of this Schedule).

(9) The Claimant will not take any disciplinary or legal action against Mr McNamara in relation to his actions in refusing to drive a 12-Car DOO(P) train on 9thApril 2016. If, contrary to the parties’ understanding, Mr McNamara or any other driver member of the Defendant employed by the Claimant refused to drive a 12-Car DOO(P) train on Gatwick Express Services on a date before the seal date of this Order, on a ground related to the dispute between the Claimant and the Defendant as regards 12-Car DOO(P) on Gatwick Express, the Claimant will not take any disciplinary or legal action against the driver or drivers in relation to these actions.

(10) The Defendant undertakes to communicate the meaning and effect of paragraphs (2) to(7), above, to its members who drive trains on the Gatwick Express and Southern Services in the terms and by the methods set out in the Appendix hereto.

(11) The Defendant will pay the Claimant’s costs of the proceedings on the standard basis to be subject to a detailed assessment of not agreed. For the avoidance of doubt, the said costs include, inter alia, the costs of and occasioned by the injunction proceedings before Langstaff J and Supperstone J, the Defendant’s cross-application heard by Supperstone J, the costs of and occasioned by the Claimant’s application for specific disclosure, and the costs of and occasioned by the Claimant’s application before Edis J.

(12) The Defendant will pay the Claimant the sum of £250,000 on account of costs within 21 days of the seal date of the Order to which this Schedule is attached.

(13) The terms of this Schedule are not confidential to the parties and may be made public.

APPENDIX

[Agreed terms of, and methods for, communications to ASLEF’s members in accordance with(11) above].

(1) In relation to paragraph (10) above the Defendant will take the following steps:

(i) the circulation of a message to the Defendant’s relevant branches, together with an instruction to the Defendant’s branch officers to pass the message on to members in their branch;

(ii) the circulation of a message, so far as practicable, to each of the Defendant’s members who are Drivers employed by the Claimant and who are required to drive on the Gatwick Express Service and Southern network; and

(iii) The sending of a text message (SMS) and a Facebook message, so far as practicable, to each of the Defendant’s members who are Drivers employed by the Claimant and who are required to drive on the Gatwick Express Service and Southern network.

(iv) The posting on the Defendant’s website of a communication reflecting the terms of the messages in (i)-(iii)above.

(2) The Defendant must notify the Claimant by email to Andy.Bindon@gtrailway.com as soon as the steps in paragraph (1) above have been taken, enclosing the text of the messages in question.

(3) The steps in sub paragraphs (1)(i), (ii)(iii) and (iv) above shall be taken as soon as reasonably practicable after the making of this Order.

Terms of communications

The following information will be communicated to the members as aforesaid:

“As members are aware GTR has commenced proceedings in the High Court against ASLEF. In order to bring the litigation to a conclusion, members are informed of the following:

ASLEF accepts that:

(i) The court has held and ASLEF accepts that GTR is contractually entitled to require drivers employed on the Gatwick Express services to drive 12 car DOO(P) on Gatwick Express Services and that no collective agreement prevents drivers employed by GTR being contractually obliged to drive 12 car DOO(P) trains on its Gatwick Express Services.

(ii) ASLEF will not call members to take any form of industrial action in reliance of the ballot which closed on 23 May 2016. Any such industrial action would not be lawful.

(iii) ASLEF will not call members to take any form of industrial action in opposition to the operation of DOO(P) trains in formations up to and including 12 cars on Gatwick Express services.

A copy of the court order and the above communication can be viewed on the ASLEF website.”

 

Ind Ltr GX SO DOO Consent Order 220616

Circular

 

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