Netjets Management Ltd v Central Arbitration Committee, Skyshare
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 05 October 2012 |
| Neutral Citation | [2012] EWHC 2685 (Admin) |
| Docket Number | Case No: CO/4333/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 October 2012 |
[2012] EWHC 2685 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/4333/2012
John Bowers QC (instructed by Messrs Eversheds LLP) for the Claimant
Peter Edwards (instructed by Messrs Russell Jones Walker LLP) for the Interested Party
The Defendant did not appear and was not represented
Hearing dates: 25 July 2012
Introduction
NetJets Management Limited, the Claimant, challenges the decision of the Central Arbitration Committee, the Defendant, made on 27 March 2012 on whether there are any territorial restrictions relevant to whether the application by Skyshare (an independent trade union), the Interested Party, for recognition in respect of the proposed bargaining unit under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (" TULR(C)A") should be accepted.
On 2 September 2011 Skyshare ("the Union") submitted an application to the Defendant that they should be recognised for collective bargaining by the Claimant in respect of a bargaining unit comprising "All pilots employed by [the Claimant]" pursuant to Schedule A1 to TURL(C)A ("the Schedule").
In its response dated 9 September 2011 the Claimant submitted that there were no workers in the proposed bargaining unit in respect of whom the statutory system of union recognition could apply because of the limits on the territorial extent of the Schedule.
On 16 March 2012 a hearing was held by a Panel of the Defendant chaired by Professor Gillian Morris. Evidence was given and submissions made by both parties to the application.
On 27 March 2012 the Defendant decided that there were no territorial restrictions relevant to the Union's application for recognition in respect of all pilots employed by the Claimant.
On 25 April 2012 the Claimant instituted proceedings challenging the decision. On 16 May 2012 Collins J granted permission to apply for judicial review of the decision.
Statutory framework
S.70A of TULR(C)A , headed "Recognition of Trade Unions", provides that Schedule A1 shall have effect.
Schedule A1, headed "Collective Bargaining Recognition", states in Part 1 at paragraph 1:
"A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with this Part of this Schedule."
Part 1, paragraph 3 of the Schedule provides, so far as is material:
"(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…"
Article 11 of the European Convention on Human Rights ("ECHR") provides as follows:
"11.1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
11.2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."
The factual background
The Claimant operates a fleet of business jets in Europe. Businesses and private individuals buy shares in those aircraft or a "jet card" of flight value and can call on jets to transport them at a few hours' notice to anywhere in Europe. There are no fixed routes or schedules. Every flight is arranged specifically for the client needing to travel. In consequence the flight crew can start a flight anywhere in Europe and finish anywhere.
The pilots at the time of the Panel hearing on 16 March 2012 were permitted to choose their own gateway from a list approved by the Claimant. The gateway is not a base for the pilots; it is merely the location from which the Claimant pays the pilot's transport costs to the first Claimant flight at the beginning of a tour and to which the Claimant returns the pilot at its cost at the end of a tour.
The contracts of the relevant pilots employed by the Claimant all include clauses 5 and 6 of the standard contract of employment, which state:
" 5. Place of work
5.1 It is in the nature of the Flight Crew Member's position that job mobility is essential. The Flight Crew Member will not have a normal place of work. The Flight Crew Member will be expected to travel as necessary for the proper performance of his duties under this Agreement. The address of the office from which the Flight Crew Member will report and address any queries concerning his employment is 5 Young Street, Kensington, London, W8 5EH.
5.2 The Flight Crew Member may be asked to perform services required at the Company or any Group Company premises for periods of short duration.
6. Gateway Airport
6.1 The Flight Crew Member will be required to select an airport from which, subject to such airport being agreed by the Company, he/she will be transported to his/her aircraft for the start of commencement of his/her duties under this Agreement ('the Gateway Airport'). In the event that the Flight Crew Member chooses/makes his/her own travel arrangements to travel to the aircraft, such arrangements shall be made at his/her own expense.
6.2 For the avoidance of doubt, the Gateway Airport is not, and shall not be deemed to be the Flight Crew Member's place of work or base, it being hereby acknowledged by both parties that the location where the Flight Crew Member performs the entirety of his/her duties depends entirely on where the aircraft is and the trip being undertaken."
At paragraph 19 of its decision under the heading "Summary of the Employer's Submissions" the Panel noted
"… The Employer stated that only 159 of the 779 pilots now in the proposed bargaining unit had a gateway in the UK and that on a broad-brush basis only 21.1% of flight departures were from the UK, followed closely by France with 18.3%. 616 of the 779 pilots lived in countries other than the UK. Pilots were paid in Euros or, if they lived in a country with a currency other than Euros, they could elect to be paid in their local currency. They were subject to the deduction of tax in Portugal with the exception of those with a UK gateway, who were subject to the deduction of tax in the UK. All pilots paid UK National Insurance Contributions because of European Union law which requires, in the case of peripatetic employees, social security contributions to be paid in the country of registration of the employing company. The Employer stated that, although the pilots standard contract said that the address of the office to which they should report and address any queries concerning their employment was the Employer's London office, in fact all instructions were issued by e-mail or phone from the Lisbon headquarters of Netjets Transportes Aereos SA, the Portugese company which operated the aeroplanes. Initial and refresher ground training took place in Lisbon; flight simulator training took place in several countries in Europe and in the USA. Human resources issues were managed from Lisbon and disciplinary or grievance meetings were conducted in Lisbon other than in exceptional circumstances."
Over the twenty-four months to February 2011 there were 2,574 changes, entirely at the pilots choice, of country of gateway. The gateway is not the airport at which a tour starts on about 96% of occasions (para 20 of the decision). The Employer stated that it understood that the gateway countries of the Union's Executive Committee members as at 2 September 2011, when the application for recognition was submitted, were Germany 2, Denmark 1, Belgium 1, France 1 and other countries (including UK) 0. The Employer stated that it understood that since the date of the application the Union had added a further two members to its Executive Committee, both of whom had gateways in the UK and that these two members had been appointed rather than elected (paragraph 21 of the decision).
The decision of the Panel
At paragraphs 9–15 of its decision the Panel summarised the submissions made by Mr Edwards on behalf of the Union, and at paragraphs 16–23 of its decision the Panel summarised the submissions made by Mr Bowers QC on behalf of the Claimant. The summaries are detailed and written with considerable care.
At paragraph 24 of the decision the Panel noted that it was common ground between the parties that there were no authorities governing the territorial jurisdiction of the Defendant under the Schedule. The Panel continued:
"However there is a developing body of case law relating to the territorial jurisdiction of employment tribunals in cases concerned with individual employment rights and both parties made submissions on the relevance and application of that case law to the Schedule and to the facts before us. The Panel paid close attention to those submissions and considered that, whilst those cases are...
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