The aviation industry is a prime example of a seasonal business. The demand, particularly on short haul routes, peaks in the summer season and falls in the winter. Whilst traditionally crews worked hard in the summer and enjoyed a quiet winter, airlines in the low cost era have sought means of reducing overheads by employing crew (including pilots) on fixed term contracts or as agency workers so that they can reduce crew numbers in the low season, tailoring their workforce to seasonal changes in the business.
For junior crew, many of whom have invested a great deal of time and money on training, this is a rather disappointing entry into the profession. However, airlines are businesses like any other and must always act in the best interests of their shareholders, balancing goodwill amongst employees on the one hand with reductions in the bottom line on the other.
Agreements between airlines and crew members engaged as agency workers shall be governed by the provisions of the Agency Worker’s Regulations, 2010 (“the Regulations”). As such, after completing a ‘qualifying period’ of 12 continuous calendar weeks, such crew members are entitled to the same “basic working and employment conditions” as they would have been entitled to if they had been recruited directly by the airline. This means that they will benefit from equivalent pay, rest periods and annual leave.
A number of airlines now engage agency workers as crew members. The terms of such engagements are often less favourable than the terms of the employment contracts of the airlines’ equivalent employees. In the case of agency workers who have completed the period of qualifying service, this clearly contravenes the Regulations. However, there is some argument as to whether the airline or the ‘temporary work agency’ (“TWA”), i.e. the agency providing the workers, should be liable for the infringement. Under the Regulations, a TWA will be responsible for a breach unless it is established that it:
a) obtained, or took reasonable steps to obtain, relevant information from the airline about the basic working and employment conditions enforced by the airline;
b) where it received such information, has acted reasonably in determining what the agency workers basic working and employment conditions should be from the end of the qualifying period;
c) insured that where it has responsibility for applying those basic working and employment conditions to the agency worker, that agency worker has benefitted from the basic working and employment conditions he/she is entitled to,
and to the extent that the TWA is not liable for any breach, the airline shall be liable.
Airlines should therefore be wary of taking the view that the TWA is solely responsible for compliance with the Regulations. The success of that argument will depend on whether the TWA has been able to establish (a), (b) and (c) above. In particular, the meaning of “where it has responsibility” at point (c) is likely to be determinative. It is not clear whether the Tribunal would find that the responsibility falls on the TWA in these circumstances; in practice the Tribunal is likely to use their discretion to decide what is just and equitable and then apportion liability between the TWA and airline as they see fit. The Tribunal is likely to look particularly unfavourably on an airline that does not willingly provide all of the information needed by the TWA in order to establish whether workers and employees are working under the same basic conditions and refuses to act when infringements are identified.
Clarification of the Tribunal’s approach would be welcome progress for affected agency workers. However, it could prove expensive for the TWA and/or airline where they are ordered to pay compensation to employees who have be subjected to unequal basic conditions over a number of years.