Call for recognition
Labour & European Law Review Weekly Issue 301 10 January 2013
Schedule A1 of the Trade Union and Labour Relations Consolidation Act (TULRCA) gives unions the right to request recognition for collective bargaining purposes. In Netjets Management Limited v Central Arbitration Committee and Skyshare, the High Court said that TULRCA had to be read in a way that was compatible with the right in article 11 to freedom of assembly and association in the European Convention on Human Rights.
Netjets operated a fleet of business jets offering flights to businesses and private individuals at short notice anywhere in Europe with no fixed routes or schedules.
Most of the pilots were based outside the UK and only about a fifth of flight departures were from the UK. The pilots’ contracts stated that job mobility was “essential” and none of them had a “normal place of work”. Most administrative, training and HR functions took place in Portugal.
The company was, however, registered in the UK and the pilots’ contracts were governed by English law. All pilots paid UK National Insurance Contributions because of a European law which that says the social security contributions of peripatetic employees must be paid in the country where the employing company is registered.
In September 2011, Skyshare, an independent trade union, asked to be recognised for collective bargaining purposes in respect of a bargaining unit made up of "all pilots employed by [the Claimant]" pursuant to Schedule A1 of TULRCA.
The company refused the application on the ground that, as Schedule A1 related only to the UK, there were no workers in the proposed “bargaining unit” who came under the UK statutory recognition system.
The matter was referred to the Central Arbitration Committee (CAC) which said that, following the decision in Ravat v Halliburton Manufacturing and Services Ltd, there was a “sufficiently strong” connection between the pilots’ employment and British employment law.
The company applied for judicial review, arguing that the provisions of TULRCA could not apply to employees “engaged anywhere in the world” and that the CAC should have adopted a comparative approach and asked whether the connection of the workers within the bargaining unit was stronger with Great Britain than elsewhere.
High Court decision
The High Court agreed with the CAC, however, saying that it had applied the test in Ravat correctly. Just because the administration of the pilots’ employment and the operating company were based in Portugal did not mean the employees had a stronger relationship with Portugal than Great Britain.
It also upheld the view of the union that TULRCA had to be read in a way that was compatible with the right in article 11 of the European Convention on Human Rights (the right of freedom of assembly and association with others, including the right to form and join trade unions).
Pointing out that the company was not suggesting that their employees should exercise their right to bargain collectively in any other state in the EU, the court said that if the union could not bargain collectively with the company in relation to their pay, hours and holidays in Great Britain they would not be able to exercise their article 11 right.
Finally, it said that the focus of the test in Schedule A1 was on the group as a whole and not on the individuals within the group.
This decision is useful in two areas. Firstly it establishes that a bargaining unit consisting of workers based outside the UK can still be covered by UK law on recognition when the connection between the circumstances of their employment and UK employment law was “sufficiently strong”.
Secondly it establishes that the law on recognition must be construed in a manner compatible with the Article 11 right to freedom of assembly and association which includes the essential right to bargain collectively. If the court had found UK law did not apply to this bargaining unit, the effect would have been to deprive them of the right to bargain collectively.