“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.”
“(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.”
“[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 Purpose 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. Bargaining Procedure 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. General 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.”
“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.”
“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.”
“Background 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. Effective date 1.7 The terms of this policy will be effective and in force from1 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. Applicability 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). … 2.0 Definitions 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 Days off Basic entitlements 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. Rosters Roster Changes 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.”
“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 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.”
“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.”
“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)[1991] IRLR 286 , per Hobhouse J, as he then was, at paragraph 31; and Kaur v MG Rover Group Ltd[2005] IRLR 40 , CA, per Keene LJ, with whom Brooke and Jonathan Parker LJJ agreed, at paragraphs [9], [31] and [32]. It is necessary to consider in their respective contexts the incorporating words and the provision in question incorporated by them.”
“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[1986] ICR 736 and those of Keene LJ in Kaur v MG Rover Group Ltd[2005] 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.”
“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.”
“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.”
“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 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 from1st 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 from1st April 2012 .”
“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 from1 April 2012 …”
“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.”
“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”
“We are now preparing our Group wide budgets for the new financial year and, of course, included in that is the cost of the1st 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 from1st April 2013 .”
“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 from1 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 from1 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.”
“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.”
“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.”
“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…”
“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 from1 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%.”