Pilots’ trade union successful in important appeal relating to collective bargaining rights
The Court of Appeal has today handed down judgment in British Airline Pilots Association v Jet2.com Limited Case No: A2/2015/1540. The appeal raised an important issue regarding the extent of a trade union’s rights to collectively bargain in relation to “pay, hours and holidays” in circumstances in which it has been granted statutory recognition under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). The decision represents a milestone in a protracted dispute between BALPA and Jet2 relating to the rights of the former to negotiate on behalf of pilots employed by the latter.
Having been granted statutory recognition as the result of an application made to the Central Arbitration Committee under Schedule A1 of TULRCA, BALPA put forward a series of proposals which it said fell within the scope of “pay hours and holidays” contained in paragraph 3(3) of the Schedule. Where a trade union has been granted statutory recognition, it has a right to negotiate on matters relating to those three core components of the contract of employment. Jet2 rejected BALPA’s right to negotiate, particularly in relation to the key issue of pilot rostering – that is the fixing of the hours which pilots are required to work. BALPA sought a declaration in the High Court but was unsuccessful in first instance before Supperstone J in a judgment handed down in March 2015.
On appeal, BALPA asserted that its right to bargain was not limited to matters which were within or capable of being within the terms of the contracts of employment of pilots employed by Jet2 – its case, relying on the statutory wording contained in paragraph 3(3) Schedule A1 TULRCA, was that as long as the proposals that it was putting forward on behalf of its members “related to” pay, hours and holidays, that was enough. Underhill LJ rejected Jet2’s argument that any such proposals must be ones which would give rise to individual contractual rights stating that it was unsurprising that Parliament had “not chosen to make contractual effect the touchstone of whether a proposal falls within the scope of the Schedule but to define the scope of collective bargaining simply by reference to its subject matter”.
In addressing the alternative point as to whether BALPA’s proposals were in fact in any event potentially contractual in nature, Underhill LJ distinguished the present case from that of Malone v British Airways [2011] ICR 125 which had been an important part of Supperstone J’s reasoning below, describing Malone as being “wholly different from..…the present case.” The Court of Appeal also rejected Jet2’s attempt to invoke the principles of statutory construction derived from Pepper v Hart [1993] AC 593 on the basis that not only was there no necessary ambiguity in the statutory wording but in any event there was no relevant ministerial statement on the key provision which was being construed by the court.
Bruce Carr QC appeared for BALPA, instructed by Farrer & Co.
To read the full judgment, please click here
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