Collective bargaining - will changes to a rostering policy count as changes to 'pay, hours and holiday'?
Veale Wasbrough Vizards
In British Airline Pilots’ Association v Jet2.com Ltd, the High Court held that in a case of compulsory trade union recognition, the airline was not obliged to negotiate with the trade union over changes to a rostering policy as these changes were not considered to be core contractual terms 'relating to pay, hours and holiday'.
The British Airline Pilots' Association (BALPA), the claimant in this case, was an independent trade union recognised by Jet2.com Ltd for the purposes of collective bargaining on behalf of its pilots. Compulsory recognition gave BALPA the right to negotiate only in respect of 'pay, hours and holiday'.
BALPA bought proceedings against Jet2.com Ltd on the basis that it had purportedly breached the collective bargaining obligations in two ways:
- First, the rostering policy used to allocate the pilots' duty assignments and days off had not been developed in negotiation with BALPA. As the policy concerned 'pay, hours and holiday', BALPA argued that it should be the subject of collective bargaining.
- Secondly, by announcing proposed salary increases for pilots prior to the annual pay negotiation meetings, Jet2.com had undermined the collective bargaining process and rendered it irrelevant.
On the first issue, the High Court held that the scope of collective bargaining was limited to core contractual terms in relation to 'pay, hours and holiday' only. It accepted the airline's argument that it was under no obligation to consult BALPA in relation to non-contractual arrangements. The rostering policy was only intended to express an objective or aspiration in terms of the allocation of duties. On this basis, the rostering provisions were not apt for incorporation into employees’ individual contracts of employment and were not a core contractual term covered by BALPA's recognition. There was, therefore, no obligation for Jet2.com to negotiate in respect of them.
In reaching its decision, the High Court held that the nature of the specified method for collective bargaining and the particular needs of the business were also relevant. There would be significant consequences for Jet2.com if it were unable to maintain flexibility in respect of rostering. As such, it was not practical nor would it make business sense for the rostering policy to be incorporated into the pilots’ contracts of employment or be subject to compulsory collective bargaining.
The High Court also rejected the allegation that Jet2.com had failed to negotiate with BALPA about the pilot employees’ pay. It held that there was no obligation on the airline to come to negotiations with any particular state of mind, it was only obliged to discuss changes to pay with BALPA before varying the pilots’ employment contracts and it had done this. There was no requirement to consult BALPA before announcing its pay proposal. The subjective intentions of the parties in terms of seeking to undermine the bargaining process were irrelevant.
This is the first case which considers the meaning and limits of collective bargaining in respect of 'pay, hours and holiday'. Employers may take some comfort from the narrow interpretation given to 'pay, hours and holiday' in this case. Operational policies which influence how a core contractual term is performed are therefore capable of variation without the need for collective bargaining, provided that they are not apt for incorporation into individual contracts of employments.
Employers should also take note that communicating any pay proposals to staff prior to discussions with a recognised trade union will not amount to a breach of collective bargaining obligations. Although it should be noted that negotiations must take place before any variations to contracts are actually made. This decision therefore provides employers with an opportunity to get out ahead in terms of communicating with staff on pay issues.
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