Mobile workers

The situation for mobile workers is slightly more complicated. A mobile worker is defined as: “any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road or air”. Separate European directives for seafarers, aviation and road transport brought provisions on working time, rest and leave to these sectors.

The Merchant Shipping (Hours of Work) Regulations 2002 provide for:

• a minimum weekly rest requirement of 77 hours in any seven-day period and 10 hours in any 24-hour period; and

• four weeks’ paid annual leave and health assessments.

The Civil Aviation (Working Time) Regulations 2004 limit the annual working time of airborne personnel to 2,000 hours (including overtime) and restrict flying time to 900 hours. They provide for seven rest days per month, 96 rest days per year, four weeks’ leave and “adequate” rest breaks. They also require “appropriate” health and safety protection for all mobile personnel, and provide for health assessments and transfer from night work on health grounds.

Aviation unions BALPA and Unite are continuing to oppose the proposed New European Flight Time Limitations (FLTs) that threaten to increase working hours (see box).

In October 2012, the Supreme Court gave its decision in British Airways Plc v Williams [2012] UKSC 43 [2012] IRLR 1014, a case representing claims by 2,750 pilots. It has implications throughout and beyond the aviation industry.

The British Airways (BA) pilots’ holiday rights only gave them basic pay during leave time. They argued that their holiday pay should also include their flying pay supplement and time away from base allowance. The case looked at whether paying only basic salary to pilots on annual leave is in breach of Regulation 4 of the Civil Aviation (Working Time) Regulations 2004.

The Supreme Court referred the case to the European Court of Justice (CJEU). It held that a pilot on annual leave was entitled not only to basic salary, but also “to all the components intrinsically linked to the performance of the tasks which he is required to carry out under his contract of employment and in respect of which a monetary amount, included in the calculation of his total remuneration, is provided”. The Supreme Court held that their holiday pay must include these supplements and allowances as well as their basic pay.

The case is of wide significance because the CJEU decision was also relevant to the correct interpretation of the Working Time Regulations which contain holiday rights for most UK workers.

Public services union UNISON commented: “This decision should prompt trade union representatives to review the holiday pay provisions in their workplaces with a view to:

• determining an appropriate pay reference period for particular roles;

• ensuring that all relevant elements of pay, including seniority premiums and other allowances that are intrinsically linked to the performance of the task, as opposed to being genuine expenses allowances, are included.”