Netjets Management Ltd v Central Arbitration Committee & Anor [2012] EWHC 2685 (Admin)

Case No CO/4333/2012

[2012] EWHC 2685 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 5 October 2012

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE

Between

NETJETS MANAGEMENT LIMITEDClaimant

CENTRAL ARBITRATION COMMITTEEDefendant

SKYSHARE (an independent trade union)Interested Party

John Bowers QC (instructed by Messrs Eversheds LLP) for Claimant

Peter Edwards (instructed by Messrs Russell Jones Walker LLP) for Interested Party

for The Defendant did not appear and was not represented

Hearing Hearing dates: 25 July 2012

Judgment

Mr Justice Supperstone :

Introduction

[1]NetJets Management Limited, the Claimant, challenges the decision of the Central Arbitration Committee, the Defendant, made on 27 March 2012 on whether there are any territorial restrictions relevant to whether the application by Skyshare (an independent trade union), the Interested Party, for recognition in respect of the proposed bargaining unit under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”) should be accepted.

[2]On 2 September 2011 Skyshare (“the Union”) submitted an application to the Defendant that they should be recognised for collective bargaining by the Claimant in respect of a bargaining unit comprising “All pilots employed by [the Claimant]” pursuant to Schedule A1 to TURL(C)A (“the Schedule”).

[3]In its response dated 9 September 2011 the Claimant submitted that there were no workers in the proposed bargaining unit in respect of whom the statutory system of union recognition could apply because of the limits on the territorial extent of the Schedule.

[4]On 16 March 2012 a hearing was held by a Panel of the Defendant chaired by Professor Gillian Morris. Evidence was given and submissions made by both parties to the application.

[5]On 27 March 2012 the Defendant decided that there were no territorial restrictions relevant to the Union’s application for recognition in respect of all pilots employed by the Claimant.

[6]On 25 April 2012 the Claimant instituted proceedings challenging the decision. On 16 May 2012 Collins J granted permission to apply for judicial review of the decision.

Statutory framework

[7]S.70A of TULR(C)A, headed “Recognition of Trade Unions”, provides that Schedule A1 shall have effect.

[8]Schedule A1, headed “Collective Bargaining Recognition”, states in Part 1 at paragraph 1:

“A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with this Part of this Schedule.”

[9]Part 1, paragraph 3 of the Schedule provides, so far as is material:

“(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…”

[10]

Article 11 of the European Convention on Human Rights

(“ECHR”) provides as follows:

“11.1 Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 11.2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

The factual background

[11]The Claimant operates a fleet of business jets in Europe. Businesses and private individuals buy shares in those aircraft or a “jet card” of flight value and can call on jets to transport them at a few hours’ notice to anywhere in Europe. There are no fixed routes or schedules. Every flight is arranged specifically for the client needing to travel. In consequence the flight crew can start a flight anywhere in Europe and finish anywhere.

[12]The pilots at the time of the Panel hearing on 16 March 2012 were permitted to choose their own gateway from a list approved by the Claimant. The gateway is not a base for the pilots; it is merely the location from which the Claimant pays the pilot’s transport costs to the first Claimant flight at the beginning of a tour and to which the Claimant returns the pilot at its cost at the end of a tour.

[13]The contracts of the relevant pilots employed by the Claimant all include clauses 5 and 6 of the standard contract of employment, which state:

“5. Place of work 5.1 It is in the nature of the Flight Crew Member’s position that job mobility is essential. The Flight Crew Member will not have a normal place of work. The Flight Crew Member will be expected to travel as necessary for the proper performance of his duties under this Agreement. The address of the office from which the Flight Crew Member will report and address any queries concerning his employment is 5 Young Street, Kensington, London, W8 5EH. 5.2 The Flight Crew Member may be asked to perform services required at the Company or any Group Company premises for periods of short duration. 6. Gateway Airport 6.1 The Flight Crew Member will be required to select an airport from which, subject to such airport being agreed by the Company, he/she will be transported to his/her aircraft for the start of commencement of his/her duties under this Agreement (‘the Gateway Airport’). In the event that the Flight Crew Member chooses/makes his/her own travel arrangements to travel to the aircraft, such arrangements shall be made at his/her own expense. 6.2 For the avoidance of doubt, the Gateway Airport is not, and shall not be deemed to be the Flight Crew Member’s place of work or base, it being hereby acknowledged by both parties that the location where the Flight Crew Member performs the entirety of his/her duties depends entirely on where the aircraft is and the trip being undertaken.”

[14]At paragraph 19 of its decision under the heading “Summary of the Employer’s Submissions” the Panel noted “… The Employer stated that only 159 of the 779 pilots now in the proposed bargaining unit had a gateway in the UK and that on a broad-brush basis only 21.1% of flight departures were from the UK, followed closely by France with 18.3%. 616 of the 779 pilots lived in countries other than the UK. Pilots were paid in Euros or, if they lived in a country with a currency other than Euros, they could elect to be paid in their local currency. They were subject to the deduction of tax in Portugal with the exception of those with a UK gateway, who were subject to the deduction of tax in the UK. All pilots paid UK National Insurance Contributions because of European Union law which requires, in the case of peripatetic employees, social security contributions to be paid in the country of registration of the employing company. The Employer stated that, although the pilots standard contract said that the address of the office to which they should report and address any queries concerning their employment was the Employer’s London office, in fact all instructions were issued by e-mail or phone from the Lisbon headquarters of Netjets Transportes Aereos SA, the Portugese company which operated the aeroplanes. Initial and refresher ground training took place in Lisbon; flight simulator training took place in several countries in Europe and in the USA. Human resources issues were managed from Lisbon and disciplinary or grievance meetings were conducted in Lisbon other than in exceptional circumstances.”

[15]Over the twenty-four months to February 2011 there were 2,574 changes, entirely at the pilots choice, of country of gateway. The gateway is not the airport at which a tour starts on about 96% of occasions (para 20 of the decision). The Employer stated that it understood that the gateway countries of the Union’s Executive Committee members as at 2 September 2011, when the application for recognition was submitted, were Germany 2, Denmark 1, Belgium 1, France 1 and other countries (including UK) 0. The Employer stated that it understood that since the date of the application the Union had added a further two members to its Executive Committee, both of whom had gateways in the UK and that these two members had been appointed rather than elected (paragraph 21 of the decision).

The decision of the Panel

[16]At paragraphs 9-15 of its decision the Panel summarised the submissions made by Mr Edwards on behalf of the Union, and at paragraphs 16-23 of its decision the Panel summarised the submissions made by Mr Bowers QC on behalf of the Claimant. The summaries are detailed and written with considerable care.

[17]At paragraph 24 of the decision the Panel noted that it was common ground between the parties that there were no authorities governing the territorial jurisdiction of the Defendant under the Schedule. The Panel continued: “However there is a developing body of case law relating to the territorial jurisdiction of employment tribunals in cases concerned with individual employment rights and both parties made submissions on the relevance and application of that case law to the Schedule and to the facts before us. The Panel paid close attention to those submissions and considered that, whilst those cases are concerned with individual rights, they offer helpful guidance in this case. The Panel found particularly helpful the approach of the Supreme Court in Ravat v Halliburton Manufacturing and Services Ltd

[2012] UKSC 1

: ‘The question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.’ (Lord Hope at [29]). In Ravat the Supreme Court said that the question that the employment judge should have asked himself was whether the connection with Great Britain was ‘sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim’ (Lord Hope at [35]). The Panel also derived assistance, in reaching its decision, from the dictum of Moses J in R (on the application of BBC) v Central Arbitration Committee

[2003] IRLR 460

at [42] that ‘the focus of paragraph 1 of Schedule A1 is on a group and not on the particular individuals within the group’.” ‘The question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.’ (Lord Hope at [29]).

[18]The Panel then concluded as follows:

“25. The Panel notes that in this case the Union meets the statutory requirement of having a certificate of independence and the Employer is a company which is registered in Great Britain. The contract between the workers in the proposed bargaining unit and the Employer is governed by English law and is subject to the exclusive jurisdiction of the English courts; includes terms relating to pay, hours and holidays; and applies to everyone in the proposed bargaining unit. All members of the proposed bargaining unit are subject to National Insurance contributions in Great Britain. The Panel considers that the connection of workers within the proposed bargaining unit, taken as a group, with Great Britain is sufficiently strong for the Union to be able to seek recognition to be entitled to conduct collective bargaining on their behalf.”

[19]The Panel stated that in view of this conclusion it was not necessary for it to reach a decision on the Union’s primary submission that no territorial issues arose in this case, nor was it necessary for it to decide on the application or relevance of

Article 11 of the ECHR

or other international instruments submitted to it (para 27).

Approach of the Court to the decision of the Panel

[20]In R (on the application of BBC) v Central Arbitration Committee Moses J emphasised the restrictive scope for intervention by this court in decisions of the Defendant, and in so doing made the following points at paragraphs 12-16 of his judgment. The Defendant is a permanent and independent arbitration body. Members of the Defendant are appointed by the Secretary of State and are required to be “persons experienced in industrial relations” (see TURL(C)A s.260(3)). The Chairman of the Defendant establishes a three member panel to deal with any applications for recognition. There is no requirement that the chairman of the panel or the other members be legally qualified. As Moses J observed at [13], “the proceedings are intended to be informal, non-legalistic and conducive to good industrial relations rather than litigation”.

[21]Buxton LJ at paragraph 2 of his judgment in the Court of Appeal in Kwik Fit GB Limited v Central Arbitration Committee

[2002] ICR 1212

endorsed what was said by Elias J at first instance in that case. Buxton LJ said:

“I would also venture to endorse in strong terms what was said by the judge in paragraph 23 of his judgment, that the CAC was intended by Parliament to be a decision making body in a specialist area that is not suitable for the intervention of the courts. Judicial review, such as is sought in the present case, is therefore only available if the CAC has either acted irrationally or made an error of law.”

The parties’ submissions

[22]Mr Bowers QC, for the Claimant, in his oral submissions made seven points: i) In applying territorial restrictions to the Schedule, the Panel was wrong only to consider the matters referred to at paragraph 25 of its decision and not to take into account the factors (most of which were not controversial) set out at paragraph 14 of the Claimant’s skeleton argument; ii) It cannot have been the intention of Parliament that provisions such as TULR(C)A, s.188 (the duty of the employer to consult employee representatives in relation to collective redundancies), ss.181-187 (disclosure of information for purposes of collective bargaining), or s.219(4) (the requirements of proper balloting and notice of action if a union is to be immune from legal action for organising industrial action), should apply to those engaged anywhere in the world; so too for many of the rights and duties covered by the Schedule (for example, see para 19C (union communications with workers after acceptance of application), para 26 (access to workers), and para 31(6) (specific performance as the sole remedy for failure to comply with the bargaining method); iii) The Employment Relations (Offshore) Employment Order 2000 SI 2000/1828, made under TULR(C)A, s.287, which relates specifically to the statutory process for compulsory trade union recognition, is a powerful indicator that recognition only applies in respect of workers within Great Britain. The Order was clearly introduced by Parliament because there would otherwise have been major uncertainty whether anyone working otherwise than on the landmass of Great Britain (in particular employed on oil rigs in the North Sea) would be covered; iv) The Panel failed to have proper regard to the analogous unfair dismissal case law, in particular the approach of the House of Lords in Lawson v Serco

[2006] ICR 250

(as developed by the Supreme Court in Ravat) and failed to apply the “stronger connection” test as was appropriate; v) The Panel misdirected itself when considering the dictum of Moses J in R (on the application of BBC) v Central Arbitration Committee in that it purported to apply a test only of whether the Union had a sufficiently strong connection with Great Britain to seek recognition. In looking at the group of workers the position of the majority of workers in that group is highly relevant; vi) The Panel misdirected itself when purporting to apply the judgment of the Supreme Court in Ravat by failing to adopt a comparative analysis and considering whether the connection of the workers within the bargaining unit was stronger with Great Britain than other jurisdictions; vii) In so far as the Union relies on human rights arguments, Mr Bowers submits that were the court to find that the Defendant had no or limited jurisdiction (only in respect of pilots based in Great Britain) to compel collective bargaining, the Union would retain the freedom to bargain through voluntary union recognition and there would be no breach of the ECHR.

[23]Mr Edwards, for the Defendant, submits that i) In respect of an application for collective bargaining rights, the key consideration is the closeness of the connection of the employer and the trade union seeking recognition to Great Britain; ii) The Defendant was correct to conclude that the connection with Great Britain was sufficiently close in circumstances in which(a) the Claimant is a company registered in Great Britain;

(b) the Union is registered as an independent union in Great Britain; and

(c) as voluntarily chosen by the employer, the contracts of all employees are expressly governed by Great Britain law and the employer and employees have agreed that the Great Britain courts have exclusive jurisdiction; iii) The Schedule must be construed in a manner that is compatible with the Article 11 right to “Freedom of Assembly and Association” (given effect in domestic law by the Human Rights Act 1998) which the Grand Chamber of the European Court of Human Rights in Demir and Baykara v Turkey Application No. 34503/97 held in its judgment at para 154 to include as an “essential element” a “right to bargain collectively with the employer”; iv) The Claimant’s submissions, if accepted, would in effect deprive its employees, the overwhelming majority of whom reside and work in the EU, of any right to bargain collectively.

Discussion

[24]As the Panel noted it was common ground between the parties that there were no authorities governing the territorial jurisdiction of the Defendant under the Schedule. The parties were agreed that some territorial limitations must be implied. In those circumstances Mr Bowers and Mr Edwards made submissions to the Panel on the relevance and application of the case law relating to the territorial jurisdiction of employment tribunals in cases concerned with individual employment rights to the Schedule. Whilst noting that those cases are concerned with individual rights, the Panel considered that they offered helpful guidance in this case and “found particularly helpful the approach of the Supreme Court in Ravat” (para 24).

[25]Mr Bowers does not criticise the approach of the Panel, indeed in the light of his submissions to the Panel he could not do so, but he submits that the Panel failed to apply the “stronger connection” test set out in the judgment of the Supreme Court in Ravat.

[26]In the light of this submission it is necessary to set out in full the material parts of the judgment of the Supreme Court in Ravat. Lord Hope, with whom all other members of the Court agreed, said:

“26. As I have already indicated (see para 14, above), it is possible on a careful reading of Lord Hoffmann’s speech in Lawson to find what he saw as the guiding principles. The question in each case is whether section 94(1) applies to the particular case, notwithstanding its foreign elements. Parliament cannot be taken to have intended to confer rights on employees having no connection with Great Britain at all. The paradigm case for the application of the subsection is, of course, the employee who was working in Great Britain. But there is some scope for a wider interpretation, as the language of section 94(1) does not confine its application to employment in Great Britain. The constraints imposed by the previous legislation, by which it was declared that the right not to be unfairly dismissed did not apply to any employment where under his contract of employment the employee ordinarily worked outside Great Britain, have been removed. It is not for the courts to lay down a series of fixed rules where Parliament has decided, when consolidating with amendments the previous legislation, not to do so. They have a different task. It is to give effect to what Parliament may reasonably be taken to have intended by identifying, and applying, the relevant principles. 27. Mr Cavanagh drew attention to Lord Hoffmann’s comment in Lawson, para 37, that the fact that the relationship was “rooted and forged” in Great Britain because the respondent happened to be British and he was recruited in Great Britain by a British company ought not to be sufficient in itself to take the case out of the general rule. Those factors will never be unimportant, but I agree that the starting point needs to be more precisely identified. It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule. The open-ended language of section 94(1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified. The case of the peripatetic employee who was based in Great Britain is one example. The expatriate employee, all of whose services were performed abroad but who had nevertheless very close connections with Great Britain because of the nature and circumstances of employment, is another. 28. The reason why an exception can be made in those cases is that the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them. The expatriate cases that Lord Hoffmann identified as falling within its scope were referred to by him as exceptional cases: para 36. This was because, as he said in para 36, the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation. It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive. The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them. 29. But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they were not both working and living overseas, must achieve the high standard that would enable one to say that their case was exceptional. The question whether, on given facts, a case falls within the scope of section 94(1) is a question of law, but it is also a question of degree. The fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous. Mr Cavanagh said that a rigorous standard should be applied, but I would not express the test in those terms. The question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.”

[27]In my view it is clear from Lord Hope’s opinion that whilst, in cases concerned with individual employment rights, “the starting point”, when considering the territorial jurisdiction of employment tribunals, is that the employment must have a “stronger connection with Great Britain than with the foreign country where the employee works” (para 27), the test to be applied is as set out in paragraph 29 of the judgment:

“the question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong (emphasis added) to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain”

. That is the test correctly identified by the Panel from the judgment in Ravat and set out at paragraph 24 of its decision, which the Panel then applied to the facts of the case at paragraph 25 of its decision.

[28]Accordingly I do not accept Mr Bowers’ submission that the Panel erred by failing to adopt a “stronger connection” test. Further, if, contrary to my view, that is the correct test to apply, I do not accept that the conclusion in the present case would be any different to the one the Panel reached. Mr Edwards observes that it was not asserted by the Claimant to the Panel that collective bargaining was more appropriately conducted in any country other than Great Britain (whether within or outside the EU). The contention of the Claimant in their detailed submissions on the territorial extent of the Schedule, in response to the Union’s application for recognition (see the Annex dealing with Question 8), was that the “base” test applies to the extent of the Schedule. The Claimant’s submission was that no pilots of the Claimant are based in Great Britain (alternatively, the only pilots based in Great Britain are the 169 currently with gateway airports in Great Britain), and it would be wrong to apply UK compulsory collective labour law to a workforce who have no particular links to Great Britain.

[29]In his skeleton argument before this court Mr Bowers submitted that the Panel should have considered “the relative strength of connection with other jurisdictions and in particular in this case Portugal” (para 37). However in his oral submissions Mr Bowers did not press the point. Having regard to the factors identified by the Panel as connecting the Claimant and the Union to Great Britain (see para 25 of the decision), the mere fact that the administration of the employment relationship and the operating company are based in Portugal could not in my view properly lead to the conclusion that a stronger relationship exists with Portugal than with Great Britain.

[30]I do not accept Mr Bowers’ submission that the Panel misdirected itself when considering the dictum of Moses J in R (on the application of BBC) v Central Arbitration Committee. Mr Bowers submits that in applying territorial restrictions to the Schedule, it was not correct to look only at the identity of the union and the employer. He contends that in looking at the group the position of the majority of workers in that group is highly relevant. The dictum of Moses J which the Panel adopted, that “the focus of paragraph 1 of Schedule A1 is on a group and not on the particular individuals within the group” (para 24), was, he submits, uttered in the different context of determining whether persons were “workers”, and thus within the scope of the recognition provisions at all.

[31]In my view it is not appropriate to take into account characteristics of individual employees when considering whether the union has collective bargaining rights. At that stage the focus is on individual workers as a group. The appropriate time to take into account individual characteristics is when considering the bargaining unit. Moses J noted that “the question of whether there exist those who should not form part of what the statute describes as a bargaining unit arises at the later stage, Elias J’s third stage [see his decision in Kwik Fit, para 21 above]. If there is no agreement the CAC must determine the bargaining unit under paragraph 19”. I agree with Moses J “that powerfully demonstrates that, at the earlier stage of consideration of the request, it is the group which must be considered and not particular individual characteristics which may later fall for consideration in determining the appropriate bargaining unit” (para 42).

[32]I reject Mr Bowers’ submission that, in applying the territorial restrictions to the Schedule, the Panel was wrong only to consider the matters referred to at paragraph 25 of its decision and not to take into account the factors set out at paragraph 14 of the Claimant’s skeleton argument.

[33]The Panel noted each of those factors (save for the recent change in the National Insurance rule) at paragraphs 19-21 of its decision and their relevance to the base test in Lawson v Serco Ltd, which the Claimant contended applied to the territorial scope of the Schedule, subject to the statement by Lord Hoffmann at [29] that “we are today more concerned with how the contract was in fact operated at the time of the dismissal than with the terms of the original contract”. The Panel also noted the other cases involving the Defendant which the Claimant considered had an international dimension where the union had applied for bargaining units to be confined to employees who were based in the UK (para 16).

[34]However, having considered the “developing body of case law relating to the territorial jurisdiction of employment tribunals in cases concerned with individual employment rights” (para 25) the Panel found that the approach of the Supreme Court in Ravat was particularly helpful, and adopted the “sufficiently strong” test from that judgment. In my view, as I have stated, it was correct to do so. It does not follow that the individual factors noted by the Panel at paragraphs 20 and 21 of its decision as relevant to the base test, are also relevant to the “sufficiently strong” test.

[35]In relation to the nine factors referred to in paragraph 14 of the Claimant’s skeleton argument that Mr Bowers complaints were not taken into account by the Panel, Mr Edwards responds as follows:(a) The fact that instructions to pilots may have been issued by e-mail from the headquarters of NetJets Transportes Aereos SA (A Portuguese registered company) which is situated in Lisbon is of no significance. The Portuguese company will in such circumstances be acting on behalf of the Claimant, a UK company;

(b) Where the Claimant decides at any particular time to hold disciplinary or grievance meetings is of no weight; (c) and (d): Where tax and National Insurance are deducted is not of very great moment; it depends on a number of factors. However, in so far as they are significant, at the time of the hearing National Insurance was deducted in the UK and 163 pilots who are resident in the UK pay tax by deduction at source in the UK; (e) Where members of the Executive Committee of the Union, certified as independent in the UK, are based at any particular time is of no consequence; (f) Where an employer decides to process employment applications with a company registered in Great Britain and in respect of which contracts of employment are governed by English law does not cast any light on the connection of workers within the proposed bargaining unit with Great Britain; (g) Mr Bowers observes that only 21.1% of flight departures overall are from the UK. However more flight departures leave from the UK than from any other European country. This, Mr Edwards contends, supports the Claimant’s case that a sufficiently strong connection with Great Britain does exist; (h) Mr Edwards makes the same point in relation to this factor. The Claimant’s note that as at 31 August 2011 there were 808 pilots of whom only 169 had chosen gateways in the UK. However more pilots have chosen gateways in the UK than in any other European country. In any event gateways, as the Claimants acknowledge, can be changed at short notice; they, together with flight departures, were described by Mr Edwards as the type of transient issue that cast little light on whether the Union and the company have a sufficiently close connection with Great Britain for recognition purposes; (i) Initial and refresher ground training presently take place in Lisbon; flight simulator training takes place in several countries in Europe and in the USA. However as Mr Edwards observes these arrangements can be changed at any time. Professional pilots will no doubt be trained wherever is most appropriate.

[36]In my view the Panel correctly identified at paragraph 25 of its decision the most important factors leading to the conclusion that the connection of workers within the proposed bargaining unit, taken as a group, with Great Britain is sufficiently strong for the Union to be able to seek recognition for the purposes of conducting collective bargaining on their behalf. In the absence of agreement between the parties as to matters that should be the subject of collective bargaining, collective bargaining is limited to negotiations relating to pay, hours and holidays (see the Schedule, Part 1, para 3(3) and (4)). As the Panel noted the contract between each worker in the proposed bargaining unit and the employer includes terms relating to pay, hours and holidays; it is governed by English law and it is subject to the exclusive jurisdiction of the English courts.

[37]Mr Bowers criticises the Panel’s decision as being “opaque”. In my view it is clear from the decision that, having noted the submissions of the parties (in particular the Claimant’s submissions in paragraphs 16 and 19-21), the Panel considered the factors set out at paragraph 25 showed a sufficiently strong connection with Great Britain for recognition purposes.

[38]I do not accept Mr Bowers’ submission that the conclusion reached by the Panel in relation to the territorial scope of the Schedule is contrary to the intention of Parliament.

[39]Section 285 of TULR(C)A (“Employment outside Great Britain”) expressly provides for territorial limitations in respect of certain provisions of the Act; however the Schedule is not so limited. Mr Edwards submits that if Parliament had intended to exclude recognition between a Union registered and certified in Great Britain and a company registered in Great Britain on the basis of a geographical location of the employees, then section 285 would have so provided. Further, and significantly, paragraphs 4-9 of the Schedule expressly provide for the factors which make an application for union recognition valid. Of particular relevance are paragraphs 6 and 7. Paragraph 6 provides that the union must have a certificate of independence. At paragraph 7(1) it is provided that a request for recognition is not valid unless the employer, taken with any associated employer or employers, employs at least 21 workers on the day the employer receives the request, or an average of at least 21 workers in the 13 weeks ending with that day. Paragraph 7(3) provides that for these purposes any worker employed by an associated company incorporated outside Great Britain must be ignored if during the relevant period he ordinarily worked outside Great Britain. Mr Edwards observes there is no similar provision which excludes overseas-based employees of companies incorporated inside Great Britain.

[40]I do not consider that section 287 of TULR(C)A or the Employment Relations (Offshore) Employment Order 2000 support the Claimant’s contention as to the intention of Parliament. Section 287(1) defines “offshore employment” as employment for the purposes of activities “(a) in the territorial waters of the United Kingdom, or (b) connected with the exploration of the sea-bed or subsoil, or the exploitation of their natural resources, in the United Kingdom sector of the continental shelf, or (c) connected with the exploration or exploitation, in a foreign sector of the continental shelf, of a cross-boundary petroleum field.” The Order clarifies the position in relation to a specific description of workers. It does not follow that the Schedule should not be taken to apply to other over-seas employees of a British company.

[41]In view of the conclusion it reached at paragraph 25 of its decision the Panel observed that it was not necessary to decide on the application or relevance of

ECHR Article 11

(para 27). In my judgment the decision of the Panel contains no error of law. Accordingly I shall only deal briefly with the Article 11 issue. In Demir the Court, having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, considered that “… the right to bargain collectively with the employer has, in principle, become one of the essential elements of the ‘right to form and to join trade unions for the protection of [one’s] interests’ set forth in

Article 11 of the Convention

…” (para 154).

[42]I accept Mr Edwards’ submission that the Schedule must be construed so as to give proper effect to the “essential” Article 11 “right to bargain collectively with the employer”. It is neither necessary nor appropriate in the present case to consider this right in detail. However, as I have stated, I am satisfied that the connection of workers within the proposed bargaining unit with Great Britain is sufficiently strong for the Union to be able to seek recognition to be entitled to conduct collective bargaining on their behalf. The Claimant does not suggest that their employees should exercise their right to bargain collectively in any other state in the EU. The reality is that if the Union cannot bargain collectively with the Claimant in relation to their pay, hours and holidays in Great Britain they will not be able to exercise their Article 11 right. In my view the Union’s construction of the Schedule gives effect to the Article 11 “right to bargain collectively with the employer”, whereas the Claimant’s construction does not.

Conclusion

[43]For the reasons I have given, this claim fails.