Peter Edwards successful in High Court Judicial Review application on territorial scope of trade union recognition
The High Court (Supperstone J.) has handed down judgment in Netjets Management Limited v. Central Arbitration Committee; Skyshare the Union [2012] EWHC 2685 (Admin), rejecting Netjets’ Judicial Review application against a decision of the Central Arbitration Committee (CAC).
The CAC had upheld Skyshare’s application for collective bargaining recognition in respect of all Netjets’ pilots, irrespective of where they lived or were based (only 159 of 779 pilots were based in Great Britain). Netjets had asserted that such a bargaining unit was outside the territorial scope of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act, 1992 (TULR(C)A). This was the first case in which either the CAC or the High Court has had to consider the issue of whether there are any (and, if so, what) territorial restrictions on the trade union recognition rights set out in Schedule A1.
Peter Edwards, instructed by Russell, Jones & Walker, acted for the Interested Party, Skyshare the Union. John Bowers QC of Littleton Chambers acted for Netjets. The CAC, as a judicial body, was not represented.
For further details on the case see below:
Skyshare had applied to be recognised for collective bargaining purposes in respect of all pilots employed by Netjets. Netjets resisted the application on the basis that the CAC did not have territorial jurisdiction to grant collective bargaining rights since only 159 of the 779 pilots lived and had a Gateway Airport in Great Britain and that all pilots were under the instruction of the Lisbon-based company which also owned the jets. Skyshare relied on the fact that the contracts of employment of all pilots expressly provided that they were governed by English law, that Netjets is registered in Great Britain and that Skyshare is an independent union registered in Great Britain.
The High Court (upholding the decision of the CAC) accepted the submissions of Skyshare that the relevant test, applying the decision of the Supreme Court in Ravat v. Halliburton Manufacturing Services Ltd (an unfair dismissal case), was whether the group of pilots taken as a whole (applying the dictum of Moses J. in R (on Application of the BBC) v. CAC) had a “sufficiently strong” connection with Great Britain that Parliament could be taken to have intended collective bargaining rights under Schedule A1 to apply. Applying that test, the CAC and the High Court concluded that there was such a sufficiently strong connection to grant collective bargaining rights in respect of all Netjets’ pilots.
Significantly for future cases in this field, Supperstone J. accepted Skyshare’s submission that the “right to bargain collectively with the employer” has now been recognised as an “essential element” of Article 11 of the European Convention on Human Rights (the Freedom of Assembly and Association) and that the relevant provisions of Schedule A1 fell to be construed in a manner consistent with that right. Skyshare’s construction was held to be consistent with Article 11 whilst Netjet’s construction was not (since it would have deprived a group of EU workers any right to collectively bargain with their employer).
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