Netjets Management Ltd v Central Arbitration Committee & Anor

Territorial limits may be implied into the statutory trade-union recognition scheme, but the question is whether the connection of the proposed bargaining group with Great Britain is sufficiently strong to justify recognition there. The analysis is directed to the group as a whole at the recognition stage. Individual workers’ characteristics are considered later, when defining the bargaining unit.

Relevant factors included the employer’s British registration, the union’s British certification, English governing law, exclusive English jurisdiction, contractual terms concerning pay, hours and holidays, and United Kingdom National Insurance contributions. The scheme must also be construed compatibly with Article 11 of the Convention, including the right to bargain collectively.

Skyshare applied under Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 for recognition to conduct collective bargaining on behalf of all pilots employed by NetJets Management Ltd.

The Central Arbitration Committee decided that no territorial restriction prevented the application. NetJets sought judicial review, contending that most pilots lived and worked outside Great Britain and that the statutory scheme should be confined by a base or stronger-connection test. Permission was granted by Collins J. The central issues were the proper territorial test, whether the Committee had considered the relevant factors, and whether the scheme was compatible with Article 11 of the Convention.

1. Claim dismissed. The Committee had made no error of law in deciding that the proposed bargaining group had a sufficiently strong connection with Great Britain.
2. Although the territorial jurisdiction of the recognition scheme is not expressly defined, some territorial limitations must be implied. The Committee was entitled to obtain guidance from individual employment-rights cases. The correct approach, drawn from Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1, was whether the connection between the employment circumstances, Great Britain and British employment law was sufficiently strong to justify recognition.
3. The Committee correctly focused on the workers as a group rather than on the characteristics of particular individuals. Individual characteristics may become relevant when determining the bargaining unit at the later stage under Schedule A1, paragraph 19.
4. The material factors identified by the Committee were sufficient. NetJets was registered in Great Britain; Skyshare was an independent union registered there; the contracts were governed by English law and subject to the exclusive jurisdiction of the English courts; they covered pay, hours and holidays; and the workers paid United Kingdom National Insurance contributions. Transient matters such as gateways, flight departures, training locations and the administration of employment matters did not require a different conclusion.
5. Section 285 did not impose a corresponding territorial restriction on Schedule A1. Paragraph 7(3), which expressly excludes certain overseas workers employed by associated companies incorporated outside Great Britain, supported the conclusion that no equivalent exclusion applied to overseas workers of a British company. Section 287 and the Employment Relations (Offshore) Employment Order 2000 dealt with a specific category and did not support NetJets’ broader argument.
6. The court also accepted that Schedule A1 should be construed compatibly with Article 11 of the Convention. The right to bargain collectively was an essential element of the right to form and join trade unions. The Committee’s construction gave effect to that right, whereas NetJets’ construction would leave the pilots without an effective opportunity to bargain collectively.

The proceedings were a judicial review of the Central Arbitration Committee’s decision dated 27 March 2012. Collins J granted permission on 16 May 2012. The High Court dismissed the claim.