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The High Court (Supperstone J) gave judgment in this case on 23 April 2015. It is the first case to consider the meaning and limits of collective bargaining in respect of “pay, hours and holiday” for the purposes of compulsory statutory recognition under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”).
The Court held that:
Ben Cooper was instructed by Elizabeth Lang, of Bird & Bird LLP, on behalf of the Defendant and was led by John Bowers QC
The Claimant in this case is an independent trade union, whose members include airline pilots employed by the Defendant airline. The Central Arbitration Committee (“the CAC”) had declared that the Claimant was recognised by the Defendant for the purposes of conducting collective bargaining. In cases of compulsory recognition the recognised union is entitled to negotiate only in respect of “pay, hours and holiday” unless the parties agree that additional matters will fall within the scope of collective bargaining (see paragraph 3 of Schedule A1 the 1992 Act).
The parties had been unable to agree a method of collective bargaining. As a result the CAC imposed a specified method for collective bargaining under paragraph 31 of Schedule A1 to the 1992 Act. In doing so, the CAC closely followed the model statutory method to which it was obliged to have regard (see paragraph 168 of Schedule A1 and the Trade Union Recognition (Method of Collective Bargaining Order) 2000 (“the 2000 Order”)).
The specified method established a joint negotiating body and seven-stage procedure for each bargaining round. Pursuant to paragraph 31(4) of Schedule A1 it had effect as if it were contained in a legally enforceable contract between the parties.
The pilot employees’ contracts of employment did not specify the number of flying hours each pilot would be required to work in any given period. They stated that details of the pilots’ duty assignments would be “in accordance with the Company Operations Manual and the Rostering and Crewing Policy”. As such the Defendant’s rostering policy determined the shifts, hours and periods each pilot actually worked. The Defendant had not negotiated with the Claimant over the full contents of this policy. The Claimant claimed that the rostering policy concerned “pay, hours and holiday” and so should be the subject of collective bargaining between the Claimant and the Defendant.
The High Court concluded that only core contractual terms relating to pay, hours and holiday fell within the scope of collective bargaining. Supperstone J relied on the wording of the specified method, which in this respect followed the model statutory method in the 2000 Order. He concluded that it related only to contractual terms affecting pay, hours and holiday. He drew further support from the wording of the 1992 Act, which specifically excludes matters that fall within the wider definition of collective bargaining in section 178 from the scope of negotiations when a trade union has been compulsorily recognised. Finally he considered that, insofar as the term “pay, hours and holiday” was ambiguous, the statement of the relevant minister at Committee stage of the Bill’s passage suggested that Parliament intended to limit the scope of compulsory bargaining to core contractual terms.
The High Court considered that outside the core contractual terms the provisions of the rostering policy were not contractual. In principle, the provisions were not apt for incorporation. The words used were intended to express an objective or aspiration and fell short of a contractual undertaking. The nature of the specified method for collective bargaining and the particular needs of the business were also relevant. There would be significant adverse consequences for the Defendant if it were unable to maintain flexibility on the day in respect of rostering. The Claimant could not circumvent this difficulty by asserting that it intended its proposals to have contractual effect because the need for flexibility on the day meant that such matters were not in principle apt for incorporation. Moreover, the Claimant’s own witness accepted that for its proposals to operate effectively they would require joint monitoring by the union and company outside the specified method. As such, it would not make business sense for the rostering policy to be incorporated into the pilot employees’ contracts of employment or be subject to compulsory collective bargaining under the specified method.
The High Court also rejected a separate allegation that the Defendant had failed to negotiate with the Claimant about the pilot employees’ pay. The Claimant argued that the Defendant had sought to undermine the collective bargaining process by communicating with the pilot employees directly about proposed pay increases before negotiations started. More generally the Claimant argued that the evidence showed hostility on the Defendant’s part towards the Claimant and an intention to render the negotiation process irrelevant.
The Court held that there was no obligation on the Defendant to come to negotiations with any particular state of mind. The Defendant was simply obliged to discuss pay with the Claimant before varying the pilot employees’ contracts as to pay and it had done so. The subjective intentions of the parties were irrelevant.
Madeline Stanley (pupil barrister at Old Square Chambers)
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