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What must be discussed with Unions is narrow, confirms High Court

The High Court has handed down an important Judgment on the scope of statutory collective bargaining. The case of BALPA v Jet2.com Ltd involves…

The High Court has handed down an important Judgment on the scope of statutory collective bargaining. The case of BALPA v Jet2.com Ltd involves interpretation of what an employer is required to do when it has been required to enter into compulsory statutory recognition with a Union (under what is know as the statutory method – that is the default which applies where an alternative is not agreed). The Court has held that, while the airline was obliged to negotiate over pay, hours and holidays, it was not required to negotiate over pilots’ rostering arrangements. It also decided that the airline had not breached its statutory responsibilities by notifying its employees directly of an intended pay increase before negotiations on the issue of pay had taken place.

The facts

In 2010, the British Airline Pilots Association (BALPA) was successful in securing collective bargaining for a group of workers at Jet2.com concerning their pay, hours and holidays. The statutory recognition regime generally limits compulsory collective bargaining to these three core contractual issues (unless something else is voluntarily agreed).

In this case, BALPA challenged the scope of that collective bargaining and the extent of their negotiating rights. The Union alleged that the employer’s rostering policy should fall within the scope of statutory negotiations because of its impact on pay, hours and holidays. It argued that employer had adopted an unreasonably restrictive interpretation of the scope of collective bargaining and that rostering arrangements clearly determined when the pilots’ contractual hours were worked, how much they were paid (as different shifts attracted different payments and bonuses) and dictated when holidays could or must be taken. The Union also contended that the employer had by-passed the prescribed negotiation process by announcing an intended pay rise to BALPA’s members prior to discussions with the Union taking place.

The High Court dismissed both of these claims. It stated that it was clearly Parliament’s intention that the scope of statutory collective bargaining should be narrow and restricted to the key issues set out in the legislation. The airline had no obligation to negotiate about ‘ancillary’ non-contractual arrangements. The Court also carefully considered whether the rostering policy could properly be considered part of the pilots’ contracts of employment and decided it should not.

In relation to the pay negotiation complaint, the High Court found that there had been no breach of the prescribed bargaining arrangements. What the employer was required to do was discuss pay with the Union before changes were brought into effect. The employer was not prohibited from communicating separately and directly with its employees, and was not required to come to negotiations with a particular state of mind.

What does this mean for me?

This case is really only directly relevant to employers who have collective bargaining agreements in place or are under pressure from a Union to set up such arrangements. In that very specific context this decision is very reassuring. It sets down clear parameters for how narrow the statutory minimum process is and how it is restricted to defined core contractual issues.

However this Judgment and the statutory process creates the backdrop for all local agreements, as it defines the terms which can be imposed on you where the Unions have strong support. This Judgment may help you ‘push back’ (if you wish to do so) against Union requests to pull your operational policies and procedures within the scope of collective negotiations.

Remember though that, in most cases, the parties will not be bound by a specified method of negotiation, and will have greater leeway to determine how negotiations are conducted. A specified method was only imposed in this case as the Union and employer had been unable to agree.

Comment

How to handle your industrial relations issues can be of critical importance. Knowing the right approach to any issue or pay negotiation can be difficult. The ability of this employer to correspond directly with its employees ahead of discussing the proposed annual pay increases with the Union has been reinforced by this Judgment. Sometimes such a tactic can be effective. However, on other occasions, that will risk undermining good (or workable) industrial relations or may even lead to strike action. Within Weightmans’ employment and pensions team there are a number of people with years of experience of dealing with such issues who are happy to help. Whilst this approach may work for the employer in this case, it is evident from this Judgment that the relationship between this employer and this Union was extremely acrimonious (which may not be where you wish to be).

If you would like to discuss in more detail the implications of this Judgment for your organisation or have any questions about industrial relations issues, please speak to your usual Weightmans contact or get in touch with Phil Allen in our Manchester Office phil.allen@weightmans.com.