British Airline Pilots Association v JET2.com Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Briggs,Lord Justice McFarlane |
| Judgment Date | 18 January 2017 |
| Neutral Citation | [2017] EWCA Civ 20 |
| Date | 18 January 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2015/1540 |
[2017] EWCA Civ 20
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the High Court, Queen's Bench Division
The Honourable Mr Justice Supperstone
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice Underhill
and
Lord Justice Briggs
Case No: A2/2015/1540
Mr Bruce Carr QC and Mr Stuart Brittenden (instructed by Farrer & Co. LLP) for the Appellant
Mr John Bowers QC and Mr Ben Cooper (instructed by Bird & Bird LLP) for the Respondent
Hearing dates: 10 th and 11 th November 2016
Approved Judgment
INTRODUCTORY
The Respondent to this appeal, Jet2. com Ltd ("Jet2"), is a low-cost passenger airline based in Leeds and serving a number of destinations in the U.K. and elsewhere in Europe. It has been required by the Central Arbitration Committee ("the CAC"), in accordance with the statutory recognition procedures and very much against its will, to recognise the Appellant trade union, the British Airline Pilots Association ("BALPA"), to conduct collective bargaining for the pilots employed by it. The issue in these proceedings is whether, or in any event to what extent, it is obliged as a result of that recognition to negotiate with BALPA about (broadly) the pilots' rostering arrangements. Supperstone J held that it was only obliged to do so in certain limited respects conceded by Jet2. BALPA appeals against that decision.
BALPA has been represented before us by Mr Bruce Carr QC, leading Mr Stuart Brittenden. Jet2 has been represented by Mr John Bowers QC, leading Mr Ben Cooper.
THE CORE STATUTORY PROVISIONS
The scheme for compulsory recognition is contained in Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, which takes effect by section 70A (introduced by the Employment Relations Act 1999 with effect from 6 June 2000). We are only concerned with Part I, which is entitled "Recognition", and within that only with a limited number of provisions.
The machinery for recognition is triggered by the union making a formal request to the employer to be recognised "to be entitled to conduct collective bargaining" for a group of workers: see paragraph 1. The collective bargaining in respect of which a request for recognition may be made is defined in paragraph 3. This reads (so far as material):
"(1) This paragraph applies for the purposes of this Part of this Schedule.
(2) The meaning of collective bargaining given by section 178 (1) shall not apply.
(3) References to collective bargaining are to negotiations relating to pay, hours and holidays; but this has effect subject to sub-paragraph (4).
(4) If the parties agree matters as the subject of collective bargaining, references to collective bargaining are to negotiations relating to the agreed matters; and this is the case whether the agreement is made before or after the time when the CAC issues a declaration, or the parties agree, that the union is (or unions are) entitled to conduct collective bargaining on behalf of a bargaining unit.
(5)–(6) …".
The key provision for our purposes is sub-paragraph (3), the effect of which is that the default position is that in a case of compulsory recognition collective bargaining will be about "pay, hours and holidays".
As will have been noted, sub-paragraph (2) of paragraph 3 makes it clear that the definition in sub-paragraph (3) applies to the exclusion of the definition of "collective bargaining" applicable elsewhere in the Act, which appears in section 178 (1). Because of one of the submissions which I shall have to consider below I should set that definition out. "Collective bargaining" is there defined as "negotiations relating to or connected with one or more of the matters referred to in sub-section (2)". The matters referred to in sub-section (2) are:
"(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;
(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;
(c) allocation of work or the duties of employment between workers or groups of workers;
(d) matters of discipline;
(e) a worker's membership or non-membership of a trade union;
(f) facilities for officials of trade unions; and
(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures."
It is unnecessary to set out the details of the process which follows a request for recognition. In short, if various steps are gone through and conditions satisfied the CAC may, notwithstanding the opposition of the employer, make a declaration that the requesting union is recognised. Paragraphs 30–31 provide for how, following such a declaration, the method for conducting collective bargaining should be arrived at. The primary object is that the parties themselves should agree a method; but paragraph 31 (3) provides that if this does not prove possible "the CAC must specify to the parties the method by which they are to conduct collective bargaining". By sub-paragraphs (4)–(6) the method so specified will have contractual effect, though the only remedy for its breach is specific performance.
Section 168 (1) of the 1992 Act gives the Secretary of State power by order to specify for the purpose of paragraph 31 (3) "a method by which collective bargaining might be conducted" – in effect a kind of model method – though sub-section (2) provides that, while the CAC must take any such model into account in specifying a method for the parties, it may depart from it to such extent as it thinks appropriate. Under that power the Secretary of State has made the Trade Union Recognition (Method of Collective Bargaining) Order 2000 ("the 2000 Order"). The method appears in the Schedule to the Order. Paragraphs 2 and 3 of the specified method are introductory and read as follows:
"2. The purpose is to specify a method by which the employer and the union conduct collective bargaining concerning the pay, hours and holidays of the workers comprising the bargaining unit.
3. The employer shall not grant the right to negotiate pay, hours and holidays to any other union in respect of the workers covered by this method."
Paragraph 4 of the method provides for the establishment of a joint negotiating body "to discuss and negotiate the pay, hours and holidays of the workers comprising the bargaining unit". I will refer later to certain other particular provisions that are relevant to the issues before us.
THE RECOGNITION OF BALPA
After failing to achieve recognition from Jet2 on a voluntary basis, BALPA made a formal request under Schedule A1. On 18 November 2010, after a prolonged process, the CAC declared, in accordance with paragraph 30, that BALPA was recognised as entitled to conduct collective bargaining for the flight deck crew employed by Jet2. By virtue of paragraph 3 (3), since the parties did not reach any different agreement the collective bargaining covered by the recognition decision related to "pay, hours and holidays".
Accordingly the next step was for the parties to seek to agree a method for conducting collective bargaining about pay, hours and holidays. That did not prove possible, and by a further decision dated 19 May 2011 the CAC, in accordance with paragraph 31 (3) of Schedule A1, specified the method which the parties were to follow. The method so specified in all material respects followed the model set out in the 2000 Order.
THE DISPUTE ABOUT ROSTERING ARRANGEMENTS
As already noted, the issue in the present appeal concerns the extent to which Jet2 is required, as a result of its compelled recognition of BALPA, to negotiate with it about the arrangements under which pilots are rostered for work. Unsurprisingly, given the requirements of operating an international airline, the rostering arrangements are complex. In October 2010, i.e. shortly before the CAC's decision on recognition, Jet2 promulgated a document called the "Rostering & Crewing Policy" ("the RCP") which was produced following consultation with a body intended to represent the interests of pilots called the Jet2. com Flight Deck Crew Council. Its declared purpose is to document what are "the basis and terms of the operation and management of the rostering and crewing of Flight Deck Crew Workers that have been in operation for many years, together with the improvements that have recently been put in place".
As part of its written "Pay Claim" in the 2014/2015 round BALPA submitted, under the heading "Hours and Holiday", a proposal for a replacement to the RCP by way of what was described as a "Scheduling Framework for a mutually agreed Scheduling Agreement": I will refer to this as "the Framework". The evidence of BALPA's principal witness, Mr White, was that it was based closely on similar scheduling agreements which he had negotiated with other airlines and represented the union's view of the industry standard for such agreements.
The full text of the Framework is appended to this judgment. I shall have to consider aspects of it fairly fully in due course. All that it is necessary to say at this stage is that it sets out in considerable detail 1 a complete system of rostering arrangements which both defines specific rights and obligations as to when pilots may be required to fly, or undertake other duties, and establishes principles and procedures for drawing up the fortnightly rosters and for dealing with the various issues that may arise in connection with their implementation. Importantly, these procedures include the...
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