Case - Garry Hay & Others v. (1) Gilgrove Ltd (2) C&C Fruit & Veg Ltd

LTL 26/4/2013,[2013] ICR 1139, Court of Appeal - Oliver Segal QC, Deshpal Panesar, Ben Cooper QC

A collective agreement that prescribed the distribution of "porterage" payments between registered porters at a fruit and vegetable market could not sensibly be interpreted to mean that, in later circumstances in which unregistered porters could lawfully work at the market, the porterage earned by unregistered porters should be paid exclusively to registered porters.

The appellants (H) appealed against a decision of the Employment Appeal Tribunal (Gilgrove Ltd v Hay [2012] I.C.R. 1171) dismissing their claim that the respondent employers had made unauthorised deductions from their wages contrary to the Employment Rights Act 1996 s.13.

H were porters at a wholesale fruit and vegetable market. The respondents were fruit and vegetable importers. H were all "registered porters", who had begun working as such during the existence of a collective agreement made in 1974 with the involvement of the union. The other porters employed by the respondents, who were not party to the proceedings, were "unregistered porters" who were employed after the termination of the 1974 agreement in 2009. Porterage was a charge made to customers by traders at the market for the movement of goods. Traditionally it would be pooled and shared between registered porters in accordance with the number of porters employed. Thus they received a basic wage plus their share of porterage. The unregistered porters were paid a higher wage but did not receive separate payment for porterage; their share of the porterage was held by the employers. H's case was that the porterage entitlement earned by both registered and unregistered porters was to be shared exclusively between the registered porters, in accordance with the 1974 agreement, which was incorporated into their employment contracts. The employment tribunal allowed their claim. The Employment Appeal Tribunal allowed the employers' appeal, holding that the intention and purpose of the 1974 agreement was to reward those actually performing the functions of porters in the market, not only those who satisfied the conditions of being registered and union members.

 

HELD: The EAT was correct in its interpretation. The 1974 agreement was no doubt about registered porters, and could fairly be read as directed to identifying their entitlement to porterage. The reason, however, that it focused on registered porters was because, at the time it was made registered porters were the only species of porter known to the market. It would be unreal to interpret the agreement as intended to prescribe that, in circumstances in which the qualifications to work as a porter in the market had changed, and unregistered porters could also lawfully work there, the porterage earned by all porters was nevertheless to be paid exclusively to registered porters. The architects of the agreement could not rationally have intended that, in circumstances in which both registered and unregistered porters could lawfully be employed in the market, the porterage earned by the efforts of the unregistered porters should be shared exclusively by the registered porters. That would not be sensible or fair. The sense of the 1974 agreement was that, insofar as it could be read as referring only to registered porters, it was simply using all references to registration as no more than descriptive of what was then a qualification for the job of porter. The description was, however, no more than that. It could not, in the changed circumstances that had come about, be elevated to the status of a qualifying condition of entitlement to porterage (see para.34 of judgment).
 
Appeal dismissed.
Counsel:
For the appellants: Ben Cooper
For the respondents: Oliver Segal QC, Deshpal Panesar
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