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||Neutral Citation Number:  EWHC 1110 (QB)
||Case No: HQ14X03165
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||23 April 2015
B e f o r e :
THE HONOURABLE MR JUSTICE SUPPERSTONE
|| BRITISH AIRLINE PILOTS' ASSOCIATION
||- and -
Bruce Carr QC and Peter Edwards (instructed by Messrs Thompsons) for the Claimant
John Bowers QC and Ben Cooper (instructed by Bird & Bird LLP) for the Defendant
Hearing dates: 9-13 March 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Supperstone :
- The Claimant is an independent trade union. The Defendant is a commercial airline company operating flights into and out of seven airports in the United Kingdom and one overseas airport. Members of the Claimant are employed by the Defendant, inter alia, as pilots.
- By a decision dated 18 November 2010 the Central Arbitration Committee ("CAC") declared that the Claimant is recognised by the Defendant as entitled to conduct collective bargaining on behalf of the bargaining unit comprising "All flight deck pilots employed by [the Defendant] up to and including Base Captains, thereby excluding the Director of Flight Operations; Chief Training Manager; Chief Pilot; Fleet Managers B757 and B737; and Fleet Training Managers B757 and B737" ("the pilots") in respect of the pilots' "pay, hours and holidays", pursuant to paragraphs 3(3) and 22(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act").
- Thereafter, the parties having failed to reach agreement about the method by which such collective bargaining was to be carried out, the CAC by a further decision dated 19 May 2011 specified the method for collective bargaining, pursuant to paragraph 31(3) of Schedule A1 to the 1992 Act.
- The method specified by the CAC ("the Specified Method") to a large extent follows the model method set out in the Schedule to the Trade Union Recognition (Method of Collective Bargaining Order) 2000 ("the 2000 Order"), which the CAC was obliged to take into account pursuant to paragraph 168 of Schedule A1 to the 1992 Act.
- The issues raised by this claim relate to the proper construction and scope of the term "pay, hours and holidays" in the Specified Method. Essentially there are two issues for determination. First, whether the Defendant has complied with the Specified Method relevant to the scope of the obligation to negotiate on matters relating to pay, hours and holidays, in relation to the Defendant's rostering arrangements. Second, whether the Defendant has complied with the Specified Method in relation to pay, in particular as to whether announcements made by the Defendant in advance of pay negotiations taking place meant that what took place thereafter did not comply with what was required under the collective bargaining process.
The statutory regime
- Section 70A of, and Schedule A1 to the 1992 Act (which were inserted by the Employment Relations Act 1999 ("the 1999 Act")) provide the mechanism by which a trade union may apply to the CAC to obtain compulsory statutory recognition.
- The scope of collective bargaining for the purposes of such compulsory recognition is defined in paragraph 3 of Schedule A1 which provides, so far as relevant:
"3.(1) This paragraph applies for the purposes of this Part of this Schedule.
(2) The meaning of collective bargaining given by section 178(1) shall not apply.
(3) References to collective bargaining are to negotiations relating to pay, hours and holidays; but this has effect subject to sub-paragraph (4).
(4) If the parties agree matters as the subject of collective bargaining, references to collective bargaining are to negotiations relating to the agreed matters; and this is the case whether the agreement is made before or after the time when the CAC issues a declaration, or the parties agree, that the union is (or unions are) entitled to conduct collective bargaining on behalf of a bargaining unit."
- The wider definition of collective bargaining under section 178 of the 1992 Act, which is expressly disapplied for these purposes by paragraph 3(2), includes negotiations relating to or connected with any of the following matters:
"(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;
(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;
(c) allocation of work or the duties of employment between workers or groups of workers;
(d) matters of discipline;
(e) a worker's membership or non-membership of a trade union;
(f) facilities for officials of trade unions; and
(g) machinery for negotiation or consultation, and other procedures, relating to any of the above matters, including the recognition by employers or employers' associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures."
- By paragraph 31(4) of Schedule A1 the Specified Method imposed by the CAC operates as if it were contained in a legally enforceable contract made by the parties.
- The earliest versions of the Bill laid before Parliament provided for the standard definition of collective bargaining in s.178 of the 1992 Act to apply to compulsory collective bargaining. That resulted in Government amendments being introduced at the Committee stage to limit the definition to negotiations relating to pay, hours and holidays. Mr Michael Wills, the Minister for Small Firms, Trade and Industry, explained the amendments as follows:
"[They] are designed to ensure that, as a minimum, collective bargaining covers negotiations about pay, hours and holiday. The union and employer can agree that other matters be included, but if they cannot agree, and the CAC imposes a bargaining method, it will apply only to pay, hours and holiday. The amendments ensure that the Bill achieves the policy set out in the White Paper. We tabled them because we realised that the original wording went wider than originally intended. The union and the employer are free to include other matters in the collective bargaining agreement – that is a deliberate feature of the legislation, to encourage voluntary agreements by giving the parties room for manoeuvre. A union may wish to bargain about occupational pensions, for example. The employer may be prepared to agree to that, provided that the union accepts the employer's proposal on, say, time off for trade union duties.
We are inclined to give the parties the maximum room to find compromises on their own. However, if they are unable to agree and the CAC has to impose a procedure, that procedure will be limited to pay, hours and holidays – the core terms of employment. That is a minimalist selection, which both employer and union are likely to find restrictive. They will both therefore have an incentive to agree a different arrangement that suits them better. At every stage, the procedure encourages voluntary settlements…"
- The Government's White Paper on Fairness at Work (May 1998) set out the proposals which led to the 1999 Act. It emphasised that the starting point in the proposed system is voluntary agreement (para 4.15). It further stated that in the event of compulsory recognition being imposed, such recognition will cover only pay, hours and holidays (para 4.18).
The Specified Method (set out in Schedule B to the CAC decision of 19 May 2011).
- The material terms of the Specified Method provide:
2. The purpose is to specify a method by which the employer and the union conduct collective bargaining concerning the pay, hours and holidays of the workers comprising the bargaining unit.
The Joint Negotiating Body
4. The employer and the union shall establish a Joint Negotiating Body (JNB) to discuss and negotiate the pay, hours and holidays of the workers comprising the bargaining unit… No other body or group shall undertake collective bargaining on the pay, hours and holidays of these workers, unless the employer and the union so agree.
14. The union's proposals for adjustments to pay, hours and holidays shall be dealt with on an annual basis, unless the two Sides agree a different bargaining period. The settlement date for revisions to pay, hours and holidays is 1 April of each year…
15. The JNB shall conduct these negotiations for each bargaining round according to the following staged procedure. [There is a seven-step procedure. At step 4 the employer shall set out in a written communication all relevant information in his possession, which 'shall contain information costing each element of the claim and describing the business consequences, particularly any staffing implications, unless the employer is not required to disclose such information for any of the reasons specified in section 182(1) of the 1992 Act. The basis of these estimated costs and effects, including the main assumptions that the employer has used, shall be set out in the communication'].
17. The employer shall not vary the contractual terms affecting the pay, hours or holidays of workers in the bargaining unit, unless he has first discussed his proposals with the union. Such proposals shall normally be made by the employer in the context of his consideration of the union's claim at Steps 4 or 5. If, however, the employer has not tabled his proposals during that process and he wishes to make proposals before the next bargaining round commences, he must write to the union setting out his proposals and the reasons for making them, together with the supporting evidence. The letter shall provide information estimating the costs and staffing consequences of implementing each element of the proposals, unless the employer is not required to disclose such information for any of the reasons specified in section 182(1) of the 1992 Act. A quorate meeting of the JNB shall be held within five working days of the Union Side's receipt of the letter. If there is a failure to resolve the issue at that meeting, then meetings shall be arranged, and steps shall be taken, in accordance with Steps 6 and 7 of the above procedure.
32. The employer and the union shall take all reasonable steps to ensure that this method to conduct collective bargaining is applied efficiently and effectively."
The standard contract of employment for pilots
- Clause 4 covers hours of work and provides:
"4.1 The flying hours you will work are dictated by the nature of the Company's business and there is no entitlement to work any specific minimum number of flying hours in any given period. Details of duty assignment will be in accordance with the Company Operations Manual and the Rostering and Crewing Policy (each as amended from time to time). You will be required to make yourself available at all times for duty assignments except during periods of authorised absence or pre-booked annual leave as detailed in the Rostering and Crewing Policy. Each day of the year, without exception, is a working day and accordingly rostering periods will include every day of the year, including Public Holidays and weekends. Copies of the Operations Manual and Rostering and Crewing Policy are available from the Flight Operations Department.
4.2 During rostered periods of standby duty, you must be contactable at all times and able to take up duties at your Base within 1.5 hours of being called out. If you are dual based you must be able to take up your duties at your Secondary Base within 2.5 hours of being called out."
- Clause 7 covers holidays and provides:
"7.1 Your Holiday entitlement for each holiday year is 36 days (inclusive of all Public Holidays) (Holiday Entitlement)
7.2 Holiday entitlement shall be booked in accordance with the Company's applicable Annual Leave Policy, a copy of which can be obtained from the Rostering Department or in the Aircrew Handbook (as amended from time to time). In accordance with the Annual Leave Policy currently in force, during the defined Summer Peak period a limit of 7 leave days will apply. However, each year the Company may at its absolute discretion consider increasing the amount of leave to be made available to each Flight Crew colleague in the Summer Peak and if there is flexibility the 7 day limit may be increased. Details of the amount of leave days available and dates of the Summer Peak for each year will be published in advance."
The rostering and crewing policy
- The rostering and crewing policy ("RCP") which came into force on 1 October 2010 was prepared by the Defendant "in consultation with" its Flight Deck Crew Council ("the Crew Council"). The material parts of the policy provide:
A. The Company and the Crew Council wish to document the basis and terms of the operation and management of the rostering and crewing of Flight Deck Crew Employees that have been in operation for several years, together with the improvements that have recently been put in place, and to all of which the Company is committing to in good faith.
B. This policy sets out the agreement, rules and parameters within which the Company and the Crew Council will operate so as to ensure the joint objectives of the efficient running of the Company and aiming to ensure a fair and equitable distribution of work amongst Flight Deck Crew Employees are achieved.
C. The intention of this policy is to improve and stabilise the quality of the working lifestyle of Flight Deck Crew Employees through the promotion of good rostering practices, avoidance of fatigue and roster disruption and ensure, so far as is practicable, fair and efficient distribution of duties.
D. The Crew Council acknowledges that there is an obligation on all Flight Deck Crew Employees to ensure all flights are fully crewed in order to comply with the operational requirements of the Company, provided such requirements are in accordance with the Company's Operations Manual Part A.
1.0 Implementation, applicability and review
Principle of fairness
1.2 Whilst the Company is committed to act in good faith in accordance with the terms of this policy, each of these terms is subject to variation or suspension by the Company if required at any time as appropriate due to Unusual Circumstances (as defined in clause 2.2 below) affecting the Company. Where any such variation or suspension is required the affected Flight Deck Crew Employees will be notified in the course of their duties.
1.7 The terms of this policy will be effective and in force from 1 October 2010. There shall be an annual review of the policy by the Company in April of each year, save that the first such review will take place in April 2012. Any proposed changes will be discussed with the Crew Council.
1.8 This policy is to be read and construed in conjunction with the Company's Operations Manual Part A, which sets out the legal basis on which the Company rosters Flight Deck Crew Employees.
1.9 This policy provides enhanced rights and operational procedures for Flight Deck Crew Employees to which the Company will endeavour to operate, except that where the Company cannot comply with this policy due to Unusual Circumstances it will continue to operate in accordance with the Company's Operations Manual Part A.
1.10 This policy will apply to all Flight Deck Crew Employees and is applicable to both the published roster and to any duties a Flight Deck Crew Employee is asked to undertake following roster publication, except the following:
1.10.4 this policy will not apply where, to maintain flexibility to meet operational requirements after a roster is produced, the Company imposes changes on an individual roster which are outside of this policy (but remain within the Company Flight Time Limitations Scheme contained in the Company's Operations Manual Part A section 7), in which case the details and frequency of such changes will be provided to the Crew Council in a monthly report for tracking and monitoring purposes; or
1.10.5 this policy will not apply in the event of the occurrence of Unusual Circumstances in which case the Company reserves the right, in its absolute discretion, to temporarily suspend the operation of all or any part of this policy with immediate effect (during which period the Company's Operations Manual Part A section 7 will apply). …
Day Off Payment means:
£400 per day for a Captain; and
£250 per day for a First Officer or a Senior First Officer.
Unusual Circumstances means unusual or unforeseen operational or commercial circumstances, whether under or beyond the control of the Company, to which the company may be required to or wish to act in order to minimise impact to its operations or take advantage of opportunities, and which are designated as Unusual Circumstances by the Company's Operations Director or Flight Ops Director. Unusual Circumstances will include but not be limited to examples such as the volcanic ash cloud disruption or British Airways strike action opportunity.
3.0 Rostering and Crewing Practices
3.5 Permanent fulltime Flight Deck Crew Employees are entitled to a total of 122 Days Off (excluding annual leave) for the Leave Year. The Company will seek to ensure that Days Off are allocated as evenly as possible over the course of the Leave Year, except where the Company is not, in its absolute discretion, able to do so due to operational requirements.
3.6 Each Flight Deck Crew Employee who is not a permanent fulltime employee is entitled to the number of Days Off as specified in their contract of employment. However, each fulltime Flight Deck Crew Employee will always have a minimum of 9 (nine) Days Off for each calendar month they are rostered.
3.48 The Crewing Team is mindful of the effect that roster changes can have on a Flight Deck Crew Employee's lifestyle. Changes to rosters will be made in the safest, most cost effective and stable manner available.
3.49 There will always be day to day circumstances which require that roster changes be made in order to ensure that disruption of the Company's flight programme is minimised. The Company will always endeavour in the first instance to ensure that any changed rosters continue to comply with the terms of this policy. However, where it is not possible to make roster changes that comply with this policy despite the Company's endeavours, this policy shall not apply to such roster changes."
Issue 1: whether there is an obligation to negotiate on rostering and other matters relating to pay, hours and holidays
- The Claimant's pleaded case in relation to collective bargaining on pilots' rostering arrangements is set out at paragraph 20 of the Particulars of Claim served on 3 November 2014:
"Rostering arrangements – i.e. the shifts, hours and periods to be worked by pilots – are plainly 'concerning the pay, hours and holidays' of the pilots in the said bargaining unit. Specifically:
(a) The rostering arrangements have a direct effect on the hours to be worked by the pilots. The Defendants have adopted an incorrect and unreasonably restrictive definition of 'hours' restricting it simply to the number of hours worked per week, as opposed to when those hours are worked.
(b) The rostering arrangements also have a direct effect on the pay of pilots, as the working of different shifts potentially attracts different payments and bonuses.
(c) The rostering arrangements also have an obvious and direct effect on holidays since the shifts worked by pilots will dictate when holidays can and must be taken."
- The Defendant's pleaded case is summarised at paragraph 44.5 of the Defence:
"… the concept of collective bargaining relating to pay, hours and holidays under the Specified Method does not encompass every aspect of the Defendant's operational rostering arrangements that may have some connection with or bearing upon pay, hours or holidays, but is limited to those aspects of rostering which are incorporated (or are in principle capable of incorporation) into pilots' individual contracts of employment."
- The relevant legal principles are not in issue. Mr Bruce Carr QC, for the Claimant, accepts that where there is express incorporation of a document (here, the RCP) by reference into a contract of employment (see para 13 above), the court must still consider whether a particular part of the document is apt to be a term of the contract. In Alexander v Standard Telephones and Cables Ltd (No.2)  IRLR 286 at para 31, Hobhouse J stated:
"Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract."
- Furthermore, as Auld LJ said in Keeley v Fosroc International  IRLR 961 at para 31:
"On the question of construction, as Mr Brennan acknowledged, where a contract of employment expressly incorporates an instrument such as a collective agreement or staff handbook, it does not necessarily follow that all the provisions in that instrument or document are apt to be terms of the contract. For example, some provisions, read in their context, may be declarations of an aspiration or policy falling short of a contractual undertaking; see e.g. Alexander and others v Standard Telephones and Cables Ltd (No.2)  IRLR 286, per Hobhouse J, as he then was, at paragraph 31; and Kaur v MG Rover Group Ltd  IRLR 40, CA, per Keene LJ, with whom Brooke and Jonathan Parker LJJ agreed, at paragraphs ,  and . It is necessary to consider in their respective contexts the incorporating words and the provision in question incorporated by them."
- In Malone v British Airways plc  ICR 125, the Court of Appeal considered the question of whether "crew complement" levels contained within an airline Scheduling Agreement were apt for incorporation into an individual contract of employment and concluded that they were not. Smith LJ (with whom Jackson and Ward LJJ agreed) stated:
"38. At the heart of Mr Hendy's submission was the contention that the touchstone for incorporation was whether the provision in question impacted upon the working conditions of the cabin crews. If it did, it was likely to be apt for incorporation. If it did not so impact, for example because it was inherently vague or merely an expression of policy or aspiration or because it plainly dealt with such collective matters as conciliation arrangements, then it would not be apt for incorporation. This delineation was based largely on the words of Scott J in National Coal Board v National Union of Mineworkers  ICR 736 and those of Keene LJ in Kaur v MG Rover Group Ltd  ICR 625…
40. Mr Carr did not dissent from those principles although he submitted that there were other important considerations besides those mentioned by Mr Hendy. In particular, he submitted that it was important to examine whether a provision was in truth a collective matter rather than a personal one. But most important of all, the test for the court was what the parties must objectively be considered to have intended the provision to mean. That had to be decided on the basis of the words used, set in context and against the factual matrix. In addition, the meaning given to a provision must make business sense. Mr Hendy did not dissent from those principles. It seems to me that there was no disagreement as to the legal approach, only as to the result of its application."
- The court was satisfied that crew complement levels do impact to some extent upon the working conditions of individual employees and that this was a pointer (together with other pointers) towards them being an individually enforceable term. However Smith LJ continued (at para 62):
"Set against that are the disastrous consequences for BA which could ensue if this term were to be individually enforceable. It seems to me that they are so serious as to be unthinkable. By that I mean that, if the parties had thought about the issue at the time of negotiation, they would have immediately said it was not intended that section 7.1 could have the effect of enabling an individual or a small group of cabin crew members to bring a flight to a halt by refusing to work under complement. So, if I apply the rule by which a term of uncertain meaning is to be construed, that of asking what, objectively considered in the light of the factual matrix against which the agreement was made, the parties must be taken to have intended the provision to mean, I am driven to the conclusion that they did not mean this term to be individually enforceable. I accept that there are pointers towards individual enforceability but these are not conclusive. In the end, I think that the true construction of this term is that it was intended as an undertaking by the employer towards its cabin crew employees collectively and was intended partly to protect jobs and partly to protect the crews, collectively, against excessive demands in terms of work and effort. I think that it was intended to be binding only in honour, although it created a danger that, if breached, industrial action would follow."
- Mr Carr's primary submission is that the process of rostering is a contractual one. The standard contract of employment provides that "duty assignments" will be "in accordance with the Company Operations Manual and the Rostering and Crewing Policy". The Operations Manual sets out the regulatory maxima and minima applicable to a pilot's work. The RCP then sets out the basis on which particular hours will be required to be worked by the pilot. Mr Richardson, the Defendant's Head of Resource and Crew Planning, acknowledged that a pilot would look in the Operations Manual and the RCP to find his entitlement to days off. Further, the only places where a pilot can locate the rules that dictate the hours that he works are the Operations Manual and the RCP. Moreover the RCP is used for the purpose of making changes to rostering. From the perspective of the individual pilot, the process of rostering is about the Defendant creating an obligation for him to turn up and work particular hours.
- There is, Mr Carr contends, a significant degree of flexibility within the RCP. There is a right to vary or suspend its operation due to "Unusual Circumstances" but that flexibility does not make the policy or its "rules and parameters" any less apt for incorporation.
- In the alternative Mr Carr submits that even if the right to bargain collectively is limited to contractual matters only and some matters contained within the RCP in their present form are not apt for incorporation, the right to collectively bargain must extend to matters which the Claimant would wish to put forward as having contractual weight even if they do not do so at present.
- Further, in the alternative, Mr Carr submits that even if the rules relating to rostering are not contractual they have a substantial impact on the hours when a pilot can be required to work and should therefore be regarded as falling within the scope of the right to bargain.
- At the outset of his submissions Mr John Bowers QC, for the Defendant, notes that the significantly wider definition of collective bargaining under section 178 of the 1992 Act is expressly disapplied by paragraph 3(2) of Schedule A1. Parliament, he contends, has deliberately chosen to limit statutory collective bargaining to a narrow list of topics which are generally regarded as the core terms of employment. They, therefore, form the sub-set of the first part of s.178(a). There is no need to stipulate that they are contractual terms because the three items themselves carry that implication. It follows that the definition in paragraph 3(3) is intended to be a narrow one, excluding the wider aspects of the s.178 definition relating to non-contractual conditions, management, operations and bargaining machinery. Thus whilst s.178 and paragraph 3(3) are not mutually exclusive, matters which are not core terms of employment relating to pay, hours and holidays, but which fall within one of the other topics in s.178 that Parliament has excluded from paragraph 3 of Schedule A1, must necessarily be outside the scope of statutory collective bargaining pursuant to the Schedule.
- The second general point Mr Bowers makes is that since the Specified Method has effect as if contained in a contract between the parties, in construing it regard should be had to the surrounding factual matrix particular to the business in question in order to ascertain the objective intention of the parties. Mr Carr observes that the statutory regime must apply equally to a supermarket and an airline. Mr Bowers accepts that that is so in terms of general application of the statute, but it does not, he submits, follow that the circumstances of the particular business in question are immaterial to the determination of what falls within the scope of statutory collective bargaining in an individual case. Rostering in an airline is a complex matter which, as Mr White, the Claimant's scheduling specialist, accepted in cross-examination, will always require retention of "flexibility on the day" (provided the minimum regulatory safety requirements are not breached). Mr Bowers submits that the enhanced operational provisions of the rostering policy are not, therefore, simple, clear, core contractual provisions; instead they are operational practices which are not apt for incorporation as contractual terms because of the potentially catastrophic consequences for the airline's business if an airline is not able to respond flexibly to circumstances as they arise (see Transcript: Day 2, 78:3-7).
- The third general point that Mr Bowers makes is in relation to the structure of the Specified Method. The first sentence in paragraph 17 states:
"The employer shall not vary the contractual terms affecting the pay, hours or holidays of workers in the bargaining unit, unless he has first discussed his proposals with the union."
In order to form a coherent overall mechanism together with paragraphs 15 and 16, Mr Bowers contends, it is clearly intended that paragraph 17 should govern all contractual revisions to "pay, hours and holidays" outside the normal annual bargaining round. Revisions to pay, hours and holidays must be made either through the normal annual bargaining round under paragraphs 15 and 16, or through the exceptional procedure under paragraph 17. It therefore follows that in providing that the employer shall not vary "the contractual terms affecting pay, hours and holidays" other than through either the annual bargaining round or the exceptional procedure, the Specified Method contemplates that the subject matter of statutory collective bargaining is only contractual terms affecting pay, hours and holidays. The Specified Method provides no mechanism for negotiating about non-contractual changes that the Defendant may wish to make outside the annual bargaining round. Mr Bowers adds that even the exceptional procedure is a potentially lengthy one and as such inapt for making revisions to policies, practices or procedures that are day to day operational or managerial in character and therefore likely to require greater flexibility. Moreover variations to such policies, practices or procedures are also less likely to be capable of realistic costing. In this regard Mr Bowers refers to paragraph 32 of the Specified Method which imposes a general obligation on the parties to ensure that the Method is applied efficiently and effectively.
- Addressing the core meaning of "pay, hours and holidays", Mr Bowers submits that the phrase "negotiations relating to pay, hours and holidays" in paragraph 3(3) of the Schedule is ambiguous. It is, he suggests, capable of a range of meanings, from a wide interpretation encompassing anything in a broad sense "related" to those topics, including decisions about the allocation of hours of work during the day and decisions about consenting to holidays being taken at particular times, through to a narrow construction limited to contractual basic pay, basic hours and amounts of annual leave. That being so reference can, he submits, be made to ministerial statements made during the Committee stage of the 1999 Act which bear directly upon this ambiguity and satisfy the criteria laid down in Pepper v Hart  AC 593. Mr Bowers relies in particular on the Minister's reference to the procedure being limited to pay, hours and holidays ("the core terms of employment"), which the Minister described as "a minimalist selection, which both employer and union are likely to find restrictive" (see para 10 above).
- Mr Carr does not accept that the wording ("negotiations relating to pay, hours and holidays") is ambiguous. Whether any such issues falls within that rubric, he submits, is a matter of assessment for the court. In any event he does not accept that the Ministerial statement relied upon by the Defendant bears on the question raised in this case. The Minister, he observes, was not asked and did not answer the question as to the intended scope of "pay, hours and holidays". There is, he suggests, nothing to indicate that it was the intention of Parliament to adopt a minimalist construction to the minimalist selection.
- Mr Bowers acknowledges that core terms as to hours will be reflected in some airline rostering provisions. However airline rostering is not just, or indeed primarily, about hours. In paragraph 5 of his witness statement Mr Richardson outlines the three categories of policy/practices which affect the Defendant's rostering arrangements. They are minimum regulatory requirements, contractual terms which are more generous than the minimum regulatory requirements and non-contractual operational policies. The Defendant accepts that the second category (contractual terms) fall within the scope of the Claimant's recognition.
- The first category (minimum regulatory requirements) comprise not only those requirements that are stipulated by statute, but also such as have to be agreed between the Defendant and the CAA and embodied in the Defendant's Operations Manual Part A in order to comply with Articles 83 and 145 of the Air Navigation Order 2009. Mr White accepted that the Claimant does not seek to negotiate in respect of these regulatory requirements.
- As to the third category (operational policies and practices) Mr Bowers submits that they do not fall within the scope of collective bargaining for three reasons. First, they are not apt for incorporation as contractual terms and are therefore not within "pay, hours and holidays", properly construed. Second, and in any event, they are not apt for negotiation pursuant to the Specified Method and therefore cannot have been intended by Parliament to fall within the scope of compulsory statutory recognition. Third, there are adjectival or ancillary matters, not falling within the core terms relating to pay, hours and holidays.
- The Defendant accepts that there are some parts of the RCP which are apt for incorporation as core contractual terms relating to pay, hours and holidays, for example those which set annual entitlements. However outside core contractual terms, it is the Defendant's case that there are wider provisions which are non-contractual because of the flexibility that is expressly provided for. In this regard Mr Bowers relies in particular on the following parts of the RCP: Background, paragraph D, and paragraphs 1.2, 1.9, 1.10.4, 1.10.5 (and the definition of "Unusual Circumstances"), and 3.49 (see para 15 above). Mr White was referred in particular to paragraphs 1.2 and 1.9 in cross-examination. He described the word "endeavour" as "too open-ended", and he said that he understood that it meant that it was not a binding obligation but an aspirational policy (Transcript: Day 2, 95:11-17; 96:4-7 and 97:1-6).
- Mr Bowers submits that even more importantly the Defendant's rostering policy is not in principle apt for incorporation because of the catastrophic adverse consequences that such incorporation could have for the business. In cross-examination Mr White accepted the seriousness of those potential consequences, and the need for flexibility on the part of the Defendant, including the need to maintain "flexibility on the day". (See Transcript: Day 2, 73:4-23; 75:18-76:8; 78:3-7 and 78:25-79:18; and 102:12-104:8. See also evidence of Mr Doubtfire, the Defendant's Managing Director, Transcript: Day 3, 63:25-64:24; 68:6-11).
- Mr Bowers submits that in any event the cumbersome mechanism of the Specified Method is not apt for the kind of development and modification through which operational policies and practices of this kind inevitably evolve over time. It is also difficult to provide the detailed costings for such evolving operational practices that would be required under the Specified Method.
- Mr Dobson, the Defendant's Chief Pilot, and Mr Richardson were cross-examined on the basis that, if the Defendant is content to discuss rostering with the Pilots' Liaison Operations Group ("PLOG"), there is no reason why it could not do so with the Claimant instead. No doubt that is correct. However as Mr Bowers observes the issue in this case is not whether rostering is capable of being discussed or negotiated with the Claimant but whether it is apt for negotiation under the particular mechanism of the Specified Method as between the Defendant and the Claimant and whether the Defendant is required to do so as a matter of law. Mr Brandon, who was the Claimant's Full Time Officer responsible from 2010 until 31 August 2014 for members employed by the Defendant, acknowledged in cross-examination (Transcript: Day 1, 64:25-65:2; 70:24-71:1) that this is the only instance of statutory (as opposed to voluntary) recognition of which the Claimant has experience. Nevertheless Mr Bowers suggests that in making all of its proposals the Claimant appears to have adopted the same approach that it has under its voluntary arrangements with other airlines. Indeed Mr White accepted that the kind of rostering agreement that the Claimant seeks to negotiate with the Defendant can only be effectively operated if there is a Joint Monitoring Committee consisting of representatives from the Claimant and Defendant to "police" its operation and decide upon appropriate flexibility in response to operational circumstances (Transcript: Day 2, 110:7-111:24; 116:11-24).
Conclusions on issue 1
- The issue of whether or not the Defendant is obliged to negotiate on rostering arrangements is one of construction. Accordingly the parties' subjective intentions are not material. Further, whether or not, as the Claimant suggests, there has been any change in the Defendant's position in relation to the negotiation of rostering is, in my view, irrelevant.
- In my judgment the Specified Method is only concerned with contractual terms affecting the pay, hours and holidays of workers in the bargaining unit. I agree with the third general point made by Mr Bowers in relation to the structure of the Specified Method (see para 28 above). I consider that in providing that the Defendant shall not vary "the contractual terms affecting pay, hours and holidays" other than through either the annual bargaining round or the exceptional procedure, the Specified Method contemplates that the subject matter of statutory collective bargaining is only contractual terms affecting pay, hours and holidays.
- Further I agree with Mr Bowers that whilst s.178 of the 1992 Act and paragraph 3(3) of Schedule A1 are not mutually exclusive, matters which are not core terms of employment relating to pay, hours and holidays, but which fall within one of the other topics in s.178 that Parliament has excluded from paragraph 3 of Schedule A1 are outside the scope of statutory collective bargaining pursuant to the Schedule.
- To the extent that the phrase "negotiations relating to pay, hours and holidays" in paragraph 3(3) is ambiguous, I consider it is permissible to have regard to the Ministerial statement made during the Committee stage of the 1999 Act. Whilst I accept Mr Carr's observation that the Minister was not asked the question as to the intended scope of "pay, hours and holidays", nevertheless the Minister's reference to the procedure being limited to pay, hours and holidays which he described as "the core terms of employment" supports, in my view, the conclusion that it was Parliament's intention to limit the scope of statutory collective bargaining pursuant to Schedule A1 to the three main contractual terms of employment.
- The Defendant correctly accepts that there are some parts of the RCP which are apt for incorporation as contractual terms (see para 34 above). However I agree with Mr Bowers that outside these core contractual terms the provisions in the RCP are non-contractual. In general, in my view, the words used in the RCP were intended to express an objective or aspiration and the provisions are not apt for incorporation; they fall short of a contractual undertaking. I have regard, in particular, to paragraph 1.2 and the use of the word "endeavour" in paragraphs 1.9 and 3.49 (see para 15 above).
- Further, consideration of the words used in the RCP set in context and against the factual matrix supports this conclusion. The factual matrix includes three categories of policy/practices which affect the Defendant's rostering arrangements (see para 31 above). The Claimant does not seek to negotiate in respect of one category, the minimum regulatory requirements (see para 32 above). The Defendant accepts that another category, contractual terms which are more generous than the minimum regulatory requirements, fall within the scope of the Claimant's recognition. That leaves the third category, operational policies and practices, which in my view do not fall within the scope of collective bargaining for the reasons advanced by the Defendant (see para 33 above). The RCP provides for flexibility (see para 34 above). Mr White accepted the need to maintain "flexibility on the day" (see para 35 above). I am satisfied that the potentially adverse consequences are such that in principle the RCP is not apt for incorporation. Mr White accepted that the rostering arrangements that the Claimant would wish to negotiate with the Defendant can only be effectively operated if there is a Joint Monitoring Committee which can respond to operational circumstances (see para 37 above). In my view the mechanism of the Specified Method (see, in particular, paras 14-17) would not, if incorporated into individual contracts of employment, make "business sense" (see Malone at para 40).
- I reject the two alternative routes put forward by Mr Carr to the obligation to consult on rostering. In my view the Defendant is only obliged under the Specified Method to negotiate in relation to matters concerning the core contractual terms of pay, hours and holidays. Further, what is proposed must be apt for incorporation. The Claimant cannot circumvent these obstacles by asserting that it intends its rostering proposals to have contractual effect. The Defendant is not obliged to negotiate in relation to a proposal that is not apt for incorporation as a contractual term and/or not apt for negotiation under the Specified Method. In any event as Mr White agreed the reality is that there is no real likelihood that the Defendant would accept the terms of the Claimant's proposed framework agreement (Transcript: Day 2, 109:23-110:4). Similarly the extent of the impact rostering arrangements may have on the hours when a pilot can be required to work makes no difference if, as I have concluded, the rostering arrangements are not apt for incorporation as a contractual term.
- I agree with Mr Carr that, as he accepted in his closing written submissions, this issue of construction can be decided without recourse to ECHR Article 11. In my view the proper construction of the scope of Schedule A1 does not give rise to any relevant restriction of the Claimant's Article 11 rights.
- The Defendant has now agreed that the following items fall within the scope for collective bargaining: Airport standby (limited to proposals to vary the maximum number of hours); Basic pay; Contactable day duties (limited to any proposals to change maximum hours); Day off payments; Days off (limited to proposals to vary annual entitlement to number of days off); Holiday pay; Maternity and paternity pay (not leave); Pilots' income protection; Rest breaks; Rostering around blocks of annual leave; Sector pay; Standby duties (limited to proposals to vary the maximum number of hours); and Summer and winter leave (amount). (See Summary Table of Items Agreed/Disputed and letter from Defendant's solicitors to Claimant's solicitors dated 3 March 2015).
- I agree with the Defendant that the remaining items which are in dispute are not core terms and/or are non-contractual and/or not apt for incorporation due to the need for flexibility, in the main for the reasons given at paragraphs 84 and 85 of the Defendant's Closing Submissions. Only those aspects of rostering that relate to the core terms of employment (pay, hours and holidays) and are apt for incorporation as contractual terms fall within the scope of the Claimant's recognition. Counsel indicated that the parties are content to apply the principles that in my view are relevant.
Issue 2: pay increases and the Specified Method
- The Claimant's pleaded case in the Particulars of Claim is as follows:
"13. In each of the years since the imposition of the Specified Method, the Defendants have unilaterally decided on the levels of basic pay and pay increases for the pilots in the said bargaining unit and have unilaterally announced the same to those pilots. No attempt has been made by the Defendants to comply with the requirements of the Specified Method or to collectively bargain with the Claimant on the issue of basic pay/pay rises before the pay rises were determined and announced.
15. The Defendants have acted, in each of those years, in breach of the provisions of, inter alia, paragraphs 2, 14, 15, 17, 30 and 32 of the Specified Method.
17. For the avoidance of any doubt, the Claimant avers that the contractual imposition of the Specified Method precludes the Defendants from: (a) unilaterally determining basic pay and pay increases (whether on a provisional basis or otherwise); and (b) announcing pay increases to the workforce prior to the conclusion of the contractual collective bargaining process, …"
- I shall set out my findings of fact in relation to this issue, the material evidence, to a substantial extent, not being in dispute.
- The 2012-2013 pay round was the first pay round in respect of which the Defendant was required to negotiate with the Claimant. On 6 September 2011 Mr Doubtfire wrote to the Defendant's Captains:
"I am pleased to tell you for your financial planning purposes next year, and to reflect our appreciation of your continuing support, that Captains' basic pay will increase by £6,000 (six thousand pounds) per annum (pro rated for non-100% captains) with effect from 1st April 2012. This is inclusive of any general salary review which may be applied in April 2012. As you are currently in receipt of annual incremental increases, you will also benefit from the relevant incremental uplift which will be applied on top of this, with effect from 1st April 2012."
Similar letters were sent to the Defendant's First Officers and Senior First Officers on 9 September 2011, the proposed increases for them being £2,250 and £3,250 respectively.
- Mr Chambers, the Defendant's Human Resources Director, stated there were two reasons why these letters were sent out prior to negotiations taking place with the Claimant:
"First, the Company wanted to give the pilots a reasonable amount of notice in advance of the proposed pay rise to give them an opportunity to plan ahead. Second, if the Company was to be in a position to attract pilots to join the business and also to retain its existing pilot workforce in a competitive employment marketplace, it was important that it set out its intentions early in respect of what it proposed pilots' salaries would increase to with effect from 1 April 2012…"
- On 30 November 2011 Mr Chambers, together with Mr Doubtfire, met with the Claimant in a JNB Meeting to discuss the business context in which the 2012-2013 Pay Claim would be assessed, pursuant to Step 1 of the Specified Method.
- On 30 January 2012 the Defendant received the Claimant's 2012-2013 Pay Claim, which was divided into three sections – Pay, Hours and Holiday. In the "Pay Section", it explained the Defendant's proposed increase to its basic pay award and stated that
"the BALPA [Company Council] sees this as having been decided as a result of recruitment and retention and as such feel no need to further discuss this particular area of the financial claim and accept it as such."
- On 1 February 2012 Mr Meeson, the Defendant's Executive Chairman, wrote to Mr Chambers and Mr Doubtfire, having received the Claimant's Pay Claim:
"My proposal is that we will a few days before your meeting write a carefully worded letter setting out our position in relation to what is within their remit and what is not and also our position.
Ian [Doubtfire] is worried that this may be seen to be bypassing negotiations. It is not. They have set out their position.
We can set out our position. We can then meet. What happens at the meeting is called negotiation. But we will give nothing."
- Mr Brandon referred to the pay increase offered as a "market leading" pay increase. Mr Kris Heslop, Vice Chair of the Jet2.com Company Council, expressed the view: "As stated in our pay claim document, previous meeting and newsletters we wholly accept this generous offer and feel it would not benefit anyone to further discuss this matter as it has already been decided and accepted by both sides outside of the negotiation process". Mr Brandon's evidence was that if he had considered the offer not to be generous he would "quite possibly" have tried to negotiate (Transcript: Day 2, 16:4-7).
- The various elements of the pay claim were discussed at meetings (in particular on 2 March, 25 May and 12 June 2012) and in correspondence.
- Before the 2012-2013 pay round had concluded, the 2013-2014 commenced with a JNB Meeting on 10 December 2012 pursuant to Step 1 of the Specified Method.
- On 11 January 2013 the Defendant sent letters to pilots in respect of the pay round for 2013-14. The letter from Mr Meeson stated:
"We are now preparing our Group wide budgets for the new financial year and, of course, included in that is the cost of the 1st April 2013 salary review. I am pleased to inform you that, other than due to unforeseen circumstances, we are planning a 3% increase in your basic pay and any applicable Qualification pay. Additionally we plan to increase Sector Pay for Flight Deck and Cabin Crew colleagues by 5%. All of these increases to be paid with effect from 1st April 2013."
- Mr Chambers accepted in relation to the Defendant's position announced in January 2013 that it was a "pretty definitive view" that Mr Meeson was expressing.
- The Claimant's 2013-2014 Pay Claim was received on 15 February 2013.
- On 28 February 2013 Mr Chambers met with the Claimant in a JNB Meeting pursuant to Step 3 of the Specified Method.
- On 21 March 2013 Mr Doubtfire wrote to Mr Brandon providing the relevant costings and explanations in response to the 2013-2014 Pay Claim (Step 4). In this letter Mr Doubtfire rejected the Claimant's proposed 5% increase to headline pay and by way of counter proposal suggested an increase to basic pay of 3%. Mr Doubtfire suggested 4 April 2013 for the Step 5 meeting.
- Mr Brandon responded on 22 March. He stated that he could not attend a meeting on 4 April. Thereafter a mutually convenient date for the Step 5 meeting was agreed for 30 May 2013. On 25 April, as the 1 April pay increase date had now passed, Mr Doubtfire wrote to Mr Brandon:
"Any pay rises for colleagues take effect from [1 April] and as you know the proposed increased this year for all colleagues is 3%.
We are sure you would not wish pilots to be treated less favourably than their colleagues, so we are increasing their base pay by the same amount and their sector pay by 5%, with effect from 1 April 2013.
This does not mean we have pre-determined the outcome of the 2013/2014 pay claim which we are negotiating with you. Any increase above these rates will be in addition to the increase paid as from 1 April 2013. Conversely, if a lower increase is agreed, after negotiation, we will not seek to recover any sums already paid which are in excess of the agreed rate."
- The Step 5 meeting took place on 30 May 2013. The minutes of the meeting are at 6/2296-2301. Mr Doubtfire addressed the 2013-2014 Pay Claim, explaining why the Defendant decided to maintain the 3% increase to basic pay and accept the Claimant's proposed 5% increase on sector pay. The meeting concluded with Mr Heslop confirming that "he would like to make a counter-proposal for the Company to consider".
- Later that day Mr Heslop wrote to Mr Doubtfire and Mr Chambers stating:
"Following what we felt were useful discussions today, please find attached a copy of the amended proposal we discussed prior to the close of the meeting this afternoon. We genuinely hope that we can build on today's meeting and come to a mutually agreeable settlement for this year's pay claim and avoid the need to enter into stages 6 and 7 of the process."
The counter-proposal accepted the 3% increase in basic pay and 5% increase in sector pay and included a number of counter-proposals in respect of other points.
- In order for the Defendant to respond to the counter-proposal, a second Step 5 meeting was arranged for 3 July 2013. The minutes record that Mr Doubtfire and Mr Chambers explained the Defendant's position in respect of each of the Claimant's proposals. At this meeting the parties agreed the increases to both basic and sector pay.
- On 24 July 2013 a further meeting was held to discuss the outstanding matters (either a Step 5 meeting 3, or a Step 6 Meeting). The minutes of this meeting are at 6/2438-2440.
- On 5 August 2013 Mr Doubtfire wrote to the Claimant setting out details of the Defendant's proposal, including those relating to the two issues still outstanding, namely Pilots' Income Protection ("PIP") and holiday pay. Acceptance of the pay offer was subject to a ballot of the Claimant's members.
- On 9 August 2013 Mr Meeson wrote:
"We have trumped them by announcing our 5% pay rise for next April. They were talking about balloting their members.
From what I gather their members and the many pilots who are not members are very happy.
They are professional troublemakers."
- On 27 August 2013 Mr Brandon wrote to Mr Doubtfire confirming the results of the ballot. The Defendant's pay offer was approved by 94% of those who voted.
- On 6 September 2013 Mr Doubtfire wrote to Mr Brandon detailing the Defendant's interpretation of what had been agreed in the 2013-2014 pay round and requesting that he sign and return a copy of the letter to comply with the Specified Method which required that collective agreements following negotiations are set down in writing and signed by both parties. The letter was signed on behalf of Mr Brandon and returned on 9 September 2013.
- On 2 August 2013 the Defendant had written to its pilots in respect of the pay round for 2014-2015:
"As I am sure you are aware we are now confirming Pilot appointments for the future and commencing our recruitment for next year in line with our planned fleet growth.
We are determined to keep our salaries highly competitive and I am therefore very pleased to let you know that out plan is to increase Flight Deck Crews' salaries by 5% next April, along with Sector Pay and Qualification Pay…"
- On 15 August 2013 Mr Doubtfire wrote to Mr Brandon:
"As you may be aware we have notified our pilots of our plan to increase Flight Deck Crews' salaries by 5% next April along with Sector Pay and Qualification Pay. We intend to apply advanced payments for the proposed pay rise from 1 April 2014. As with this year we would not seek to recoup any advanced payments if the increase negotiated with BALPA is less than 5%."
- On 22 November 2013 Mr Chambers and Mr Doubtfire met with the Claimant in a JNB Meeting in order to discuss the business context in which the 2014/15 Pay Claim would be assessed pursuant to Step 1 of the Specified Method.
- On 28 November the Defendant received the Claimant's Pay Claim for the 2014-2015 pay year. The Claimant accepted the rise in headline pay of 5%, proposed that Sector Pay be increased by 5% in line with the increase in headline pay and made other proposals in respect of terms and conditions.
- On 12 December 2013 there was a JNB Meeting pursuant to Step 3 of the Specified Method. The minutes of the meeting (7/2836-2839) record that the 5% increase in base pay was accepted by the Claimant. The other items included in the Pay Claim were raised and responded to by Mr Chambers and/or Mr Doubtfire.
- Pursuant to Step 4 of the Specified Method Mr Doubtfire wrote to Mr Brandon on 7 January 2014 responding to the Claimant's Pay Claim, attaching a table setting out relevant costings and explanations as required by the Specified Method. Mr Doubtfire confirmed an increase of 5% in sector pay and also an increase of 5% in qualification pay which was not referred to in the Pay Claim but which had been confirmed in letters written to pilots on 2 August 2013. The Claimant's other proposals were rejected. Mr Doubtfire explained that the Defendant considered its proposed increases to be competitive and appropriate for rewarding their pilots and retaining existing employees and attracting new ones. The Defendant had agreed to pay increases totalling £2,151,062.80.
- On 17 January 2014 a JNB Meeting pursuant to Step 5 of the Specified Method was held. The minutes of the meeting (8/2958/2963) record that Mr Chambers and Mr Doubtfire were asked a number of questions regarding the items which the Defendant had not accepted in the Pay Claim to which they responded.
- A Step 6 meeting was held on 4 February 2014. The minutes of the meeting have not been agreed, but it is clear from the two versions of the minutes that have been produced that again the items included in the Claim were raised and discussed.
- On 23 April 2014 the Defendant sent letters to its pilots confirming the increases to basic salary, sector pay and qualification pay, as it had done in the previous year.
- Mr Chambers gave evidence that over the years, following discussions with the Claimant within the Specified Method, the Defendant had agreed increases in sector pay, qualification pay, a new day off payment for senior first officers, a holiday pay day rate for pilots, an uplift in pilot income protection cover and increases on day off payments (Transcript: Day 3, 164:17-165:19).
The parties' submissions
- Mr Carr submits that the evidence makes clear that the strategy of the Defendant has been to remove any force from the collective bargaining process in relation to pay. The conduct of the Defendant, he suggests, has been cynical and calculated to ensure that the Claimant had no influence in pay determinations. He contends it follows that the Defendant has rendered the negotiation process an irrelevance and in so doing has not complied with the Specified Method.
- In response Mr Bowers submits that there is nothing within the Specified Method which prevented the Defendant from communicating with its pilots in the way it did before negotiating with the Claimant. Further, the Specified Method imposes no obligation on the Defendant to have a particular state of mind before entering into discussions with the Claimant. It is, Mr Bowers submits, of the nature of negotiations that parties may have "negotiating positions" which may include "red lines". In fact, Mr Bowers contends the evidence establishes that the Defendant did negotiate with the Claimant as it was required to do under the Specified Method.
- Throughout this trial the Claimant has been at pains to establish the hostility of the Defendant, and in particular that of Mr Meeson, towards the Claimant. I do not consider it necessary in this judgment to detail the rather acrimonious relationship that the evidence suggests exists between the parties. It suffices to record that it is not in dispute that the Defendant opposed the Claimant every step of the way in its efforts to achieve recognition which led eventually to the imposition of the Specified Method. The Defendant does not wish to negotiate with the Claimant to a greater extent than required by law.
- Mr Meeson has chosen not to give evidence. However his personal antipathy towards the Claimant is clear from the documents and not contradicted by the Defendant's witnesses. From his first intervention in June 2009 when uninvited he attended a meeting of the Claimant and stated that BALPA was "out to ruin this airline" and that he would "not deal with them", his attitude to the Claimant does not appear to have changed. He has variously referred to the Claimant as "a bureaucratic outside body" (letter to pilots dated 3 July 2010) and "professional troublemakers" (see para 69 above). Asked by Mr Carr as to whether Mr Meeson has a "disdain" and "contempt" for the Claimant and officials that work within it, Mr Chambers replied
"It is more for unions, rather than specifically BALPA as a sole union.
Mr Meeson has grown the business rapidly over a number—over a lot of years. He employs through Jet2 and Jet2 Holidays over 4,000 employees in the summer. He also has … grown the business significantly. So quite clearly he believes that's the way he's grown the business and manages the business, he wouldn't take too well for third parties coming in to get involved."
(Transcript, Day 3: 139:3-24).
- Mr Bowers observes that it is clear the parties have conflicting subjective intentions. He acknowledges that the Defendant opposed the Claimant's involvement in its business and wished to minimise that involvement. However he adds, the charge applies equally the other way: there is no doubt that the Claimant's intention is to maximise the extent to which the Defendant is obliged to negotiate with it.
- Mr Brandon claimed a desire to "build bridges" but some of his actions, in particular his proposal in January 2013 that the Claimant adopt a course of action of making public threats of industrial action and praising the Defendant's main competitor in order to "hit sales" of the Defendant illustrated, in my view, a willingness to resort to inappropriate measures. In October 2014 Mr Brade replaced Mr Brandon as the Claimant's national officer with responsibility for members employed by the Defendant. Mr Brade's evidence left me with the impression that at least in part the reason for his appointment arose from an appreciation by the Claimant that there was a need to improve working relationships between the parties.
- I agree with Mr Bowers that ultimately the parties' subjective intentions are irrelevant because the obligation to negotiate under the Specified Method does not impose any obligation on a party to come to negotiations with a particular state of mind about any particular issue.
- The Defendant is not prohibited by the Specified Method from communicating directly with its pilots about proposed pay increases. What the Specified Method requires is that the Defendant discuss pay with the Claimant before varying the employees' contractual terms about pay.
- As a matter of fact this is what the Defendant did each year. I consider that it complied with its obligations in this regard. The Defendant has not implemented any variations to terms and conditions in relation to pay before discussions with the Claimant under the Specified Method.
- I agree with Mr Bowers that the fact that the Defendant would in all probability have rejected any counter proposals on base ('headline' – see Transcript: Day 3, 145:11-22) pay does not negate the fact that no pay rise was brought into effect before discussions had been conducted with the Defendant under the Specified Method.
- The Defendant did in fact, following discussions with the Claimant within the Specified Method, agree to introduce some changes to pay, hours and holidays (see para 81 above).
Conclusion on issue 2
- In my judgment the Defendant has not acted in breach of the Specified Method.
- For the reasons I have given this claim is dismissed.
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