High Court ruling on scope of Compulsory Union Recognition        

In a judgment delivered on 5 October in the case of NetJets Management Limited –v- CAC and Skyshare (a Union), the High Court gave a ruling on the territorial extent of the UK laws relating to the compulsory recognition of unions for collective bargaining.

Facts

NetJets, a UK company, employs pilots under contracts governed by English law.  However, those pilots live all over Europe with only a minority living in the UK.  Pilots have no base because the company flies executive jets only as and when required by NetJets owners and customers. Only 21% of flights originate in the UK.

The pilots formed a union and obtained a Certificate of Independence for this union from the UK Certification Officer. The overwhelming majority of the union’s executive committee lives in countries other than the UK.  The union applied under Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 for a declaration of recognition and NetJets opposed this on the ground that the Schedule does not give the CAC jurisdiction.

High Court decision

The High Court upheld a decision of the Central Arbitration Committee that four key factors linking the pilots’ employment to the UK outweighed other factors which pointed away from the UK. The four factors were that the employer was a UK company, the union had a Certificate of Independence from the UK Certification Officer, the contracts of employment chose English law as the law of the contract and UK National Insurance was paid in respect of the pilots. On the last point, an EU Regulation dealing with social security for aircrew requires the social security system of the country where the employer is headquartered to be applied.

This decision gives a very broad territorial scope to Schedule A1 of the Trade Union and Labour Relations (Consolidation) Act 1992 and does raise obvious questions about other parts of that Act, for example in relation to collective consultation on redundancy.

A human right to bargain collectively

One dramatic part of the Court’s decision was the ruling that Article 11 of the European Convention of Human Rights, which contains a right of workers to belong to trade unions, requires countries to have a system for compulsory recognition of trade unions for collective bargaining.  For many years the case law of the European Court of Human Rights did not recognise any right to collective bargaining, but in Demir and Baykara v Turkey  the Court did hold the right to collectively bargain was part of Article 11.   However that was in the context of voluntary bargaining between an employer and a union which the Turkish government intervened to forbid.  It is quite an extension to go from there to saying that each country belonging to the European Convention must have a system for compulsory collective bargaining.