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The bargaining agenda
[ch 5: pages 142-143]If the ballot goes in the union’s favour, or if the CAC declares that there should be recognition without a ballot because the union already has more than 50% of the workforce in membership, the employer and union must try to negotiate a collective bargaining procedure.
Where statutory recognition is imposed by the CAC, as opposed to being voluntarily negotiated by the parties (either before or during the statutory recognition process), the bargaining agenda will be limited to pay, hours and holidays (although the parties can agree to bargain on other matters). Pensions are excluded from the definition of pay.
The meaning of the phrase “relates to pay, hours and holidays” was decided in this important Court of Appeal ruling in favour of pilots’ union BALPA:
Holiday carrier Jet2 was hostile to union recognition and fought every step of BALPA’s recognition application, including the scope of the compulsory bargaining agenda. BALPA wanted to bargain over pilot rostering arrangements but Jet2 argued that these arrangements did not “relate to pay, hours and holidays”. Specifically the airline argued that only terms and conditions apt for incorporation into individual employment contracts must be bargained over under the compulsory procedure.
The Court of Appeal (CA) disagreed, pointing out that “trade union representatives and managers are not lawyers”, that the words “pay, hours and holidays” should be given their natural meaning and that it should not normally be difficult to work out whether a proposal “relates” to pay, hours or holidays. Jet2's mistake was to confuse the subject-matter of negotiations with their outcome. Just because Jet2 was obliged to negotiate with the union over rostering, this did not oblige it to agree the union’s rostering proposals.
Whether or not an issue “relates” to pay, hours and holidays will depend on the facts of each case. For example, here, proposed roster arrangements, proposals for a joint rostering monitoring committee, allocation of days off to a pilot’s home base, and for shift swapping between pilots all “related” to pay, hours and holidays, whereas a proposal for a lounge rest area for pilots did not.
BALPA v Jet2Com.Limited [2017] EWCA Civ 20
www.oldsquare.co.uk/images/uploads/news-and-media/170118_BALPA_Jet2.pdf
In addition to bargaining on pay, hours and holidays, under section 70B (Training), TULRCA, the compulsory bargaining procedure imposed by the CAC includes a requirement to consult the union over the employer’s training policy for workers in the bargaining unit and on training plans over the next six months, and to report on training provided since the last meeting. If the employer fails to consult, the union can bring a tribunal claim. The maximum award is two capped weeks’ pay for each member of the bargaining unit (maximum £1,016 per worker, April 2018).
The Trade Union Recognition (Method of Collective Bargaining) Order 2000 provides a model framework for negotiations. The statutory framework is cumbersome and formal, and involves a six-step process, legally enforceable through an order for “specific performance” (that is, an order compelling a reluctant party to attend negotiations). The CAC is not required to use this model, and the parties can agree to something less restrictive if they prefer.
Although a hostile employer can be forced to participate in the formal bargaining process, they cannot be forced to negotiate meaningfully. For example, in BALPA v Jet2.Com.Ltd [2015] EWHC 1110, each year before the annual pay negotiations with BALPA, the employer contacted each pilot in the bargaining unit directly, to announce the planned pay rise. The employer never moved from this pay offer, and its intention throughout was to undermine the union. Nevertheless, ruled the judge, Jet2 had not breached the statutory procedure. The statutory obligation to negotiate does not require the employer to enter the negotiations with a particular state of mind.
However, where an employer makes a direct offer to members in order to subvert the collective bargaining process, it is worth considering whether union members targeted by the offer have a claim for compensation for an unlawful inducement under section 145B, TULRCA (see Kostal UK Limited v Dunkley & Others [2017] EAT UKEAT/0108/17/RN, page 132).