The High Court has handed down an important decision on the scope of statutory collective bargaining under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), and, in particular, whether it extended to pilots' rostering arrangements (British Airline Pilots' Association (BALPA) v Jet2.com Ltd (Jet2)  EWHC 1110 (QB))
In 2011, the trade union representing UK pilots, BALPA, successfully applied to the Central Arbitration Committee (CAC) for statutory recognition in respect of a group of workers at Jet2. This entitled BALPA to conduct collective bargaining on the Jet2 workers' behalf covering "negotiations relating to pay, hours and holidays", in accordance with paragraph 3(3), Schedule A1,TULRCA..
As Jet2 and BALPA could not agree about the method of collective bargaining, the CAC stipulated a bargaining method to be used, mainly based on the model method set out in the Trade Union Recognition (Method of Collective Bargaining) Order 2000 (SI 2000/1300). This provided for a joint negotiating body to be formed to conduct the collective bargaining on an annual basis and set out a seven-step procedure to be followed in each round of bargaining. The seven-step procedure did not allow Jet2 to vary "the contractual terms affecting the pay, hours or holidays of workers in the bargaining unit", unless it had first discussed its proposals with the union.
Jet2's rostering policy (which was non-contractual, although it was referenced in standard contracts of employment) determined the shifts, hours and periods each pilot actually worked. BALPA asserted that it should have the right to negotiate a new rostering agreement because of its impact on pay, hours and holidays, but Jet2 stated that it preferred to deal with pilots directly on rostering.
Notwithstanding the CAC's bargaining method, Jet2 took an approach, in three consecutive pay rounds, of announcing to all pilots the pay rises that it was proposing several months in advance of the annual pay negotiation meetings. For example, for April 2014 pay increases, Jet2 first wrote to its pilots in August 2013 saying that it planned to increase all elements of their pay by 5%. Pay negotiations then took place between November 2013 and February 2014, after which Jet2 confirmed the increases to basic salary, sector pay and qualification pay that had previously been indicated in the August 2013 letters.
BALPA brought a claim in the High Court challenging the scope of the collective bargaining with Jet2, and, therefore, their negotiating rights, arguing that:
- Jet2's rostering policy should fall within the scope of statutory negotiations; and
- Jet2 had breached the CAC's bargaining method by announcing details of proposed pay rises in advance of collective pay negotiations taking place.
Jet2's position on the rostering was that "pay, hours and holidays" did not include every aspect of operational arrangements that may affect these matters, but only those aspects that were either incorporated into pilots' individual contracts of employment, or, in principle, capable of incorporation.
In respect of the pay rises, Jet2 argued that there was nothing in the CAC's bargaining method which prevented it from giving advance notice of intended pay rises before negotiating with BALPA.
High Court decision
The High Court dismissed BALPA's claim.
The High Court stated that the provisions of the rostering policy were not contractual and did not, therefore, need to be collectively bargained, commenting that it was clear from paragraph 3(2) of Schedule A1 of TULRCA that the scope of the statutory collective bargaining regime should be construed narrowly and restricted to the three express provisions in the legislation (i.e. "pay, hours and holidays"). Although some parts of the rostering policy were apt for incorporation as contractual terms (e.g. those dealing with annual leave entitlement), the Court upheld Jet2's argument that outside of these core terms, the provisions of the rostering policy were non-contractual, because of the flexibility expressly provided for within the policy. The fact that the rostering arrangements had a substantial impact on the hours when a pilot could be required to work made no difference, as the rostering arrangements were not apt for incorporation as a contractual term.
In respect of Jet2's practice of pre-announcing its proposed pay rises months in advance of the annual pay negotiation meetings, the Court ruled that this was not prohibited, because the CAC's bargaining method does not impose any obligation on either party to come to negotiations with a particular state of mind. What was required was for the airline to discuss pay with the union before actually varying the pilots' pay, and that is what Jet2 had done.
The decision confirms the narrow scope of the statutory collective bargaining regime and that it is limited to defined core contractual matters. So, for employers with collective bargaining arrangements in place (or under pressure to set up such arrangements), this is a welcome decision. There would have been significant consequences for Jet2 had it not been able to maintain flexibility in its rostering arrangements. However, it is also worth noting that the Court also stated that it would consider the context of the business in question when interpreting the scope of the collective bargaining regime and whether a particular matter should fall within its scope. It will have regard to whether negotiation of an issue, and the method for any negotiation, would make “business sense".
Finally, we should just say that this is one of only a very few reported cases which have considered the statutory provisions concerning the CAC's ability to specify a method of collective bargaining and the terminology of the Trade Union Recognition (Method of Collective Bargaining) Order 2000 (SI 2000/1300). We suspect that this may be because the procedure is rarely used in practice, given that, in most cases, the parties will not be bound by a specified method of negotiation as the parties were here (agreeing on a method of collective bargaining between themselves, rather than having one imposed by the CAC, once the employer has been ordered by the CAC to recognise the union).