BA Strike - Your Thoughts & Questions III
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For those that are interested -
Malone & Ors v British Airways Plc [2010] EWCA Civ 1225 (03 November 2010)
Malone & Ors v British Airways Plc [2010] EWCA Civ 1225 (03 November 2010)
Thanks for the link Litebulbs, interesting judgement.
In summary, all three appeal judges held that the original trial judge's 6 reasons to reject crewing levels for incorporation into individual contracts were each flawed, but then came up with a brand new reason for rejecting such incorporation.
To be fair, I have sympathy with Unite's decision to appeal the original judgement in the circumstances.
In summary, all three appeal judges held that the original trial judge's 6 reasons to reject crewing levels for incorporation into individual contracts were each flawed, but then came up with a brand new reason for rejecting such incorporation.
To be fair, I have sympathy with Unite's decision to appeal the original judgement in the circumstances.
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From the above court judgement:
Does this mean that BASSA's collective agreements aren't worth the paper they're written on?
- The relationship between BA and the trade union branches representing the cabin crews is, in my experience at any rate, rather unusual. Issues which might usually be regarded as falling within the sphere of management are the subject of bilateral negotiation resulting in collective agreements. There may be historical reasons for this; if so they do not matter. The present position is that there are several collective agreements between BA and the relevant trade unions which appear to cover almost every aspect of the cabin crew working terms and conditions. None of these collective agreements is enforceable as between BA and the trade union in that in none of them is there any express intention recorded that the agreement should be enforceable, as is required by section 179 of the Trade Union and Labour Relations (Consolidation) Act 1992.
Donation?
Alpine,
Seeing as how the original imposition arose as a result of Unite's incompetence, the answer is no.
If I was a Unite/BASSA member, I'd be extremely unhappy about the unrealistic approach to negotiations with BA and the subsequent shambolic escalation to IA. I wouldn't be complaining about this particular litigation though, which as I have said above, would appear to have been reasonable in the circumstances.
Seeing as how the original imposition arose as a result of Unite's incompetence, the answer is no.
If I was a Unite/BASSA member, I'd be extremely unhappy about the unrealistic approach to negotiations with BA and the subsequent shambolic escalation to IA. I wouldn't be complaining about this particular litigation though, which as I have said above, would appear to have been reasonable in the circumstances.
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Upon reading the ruling, it is clear even the judges have found it unusual the degree to which BA has allowed control of what would normally be management decisions to the Unions through the multiple collective agreements. These agreements leaving the door wide open for employees to take action in the way of Malone, et. al.
If you think about it realistically, it is absolutely absurd that employees should even contemplate dragging their employer through the High & Appeal Courts and, God forbid, possibly even the Supreme Court over what any sensible person would see as crew complements being a management decision.
I think with the advent of MF that BA will not only be looking to more streamlined CC employment contracts but will also not enter into anything like the depth, complexity and associated granting of IFCE operational control through any future MF union collective agreements.
BA will have more then learned its lesson on this one and these old style and unnecessarily detailed (now that BA has seized back control) agreements will fade away with the legacy CC themselves.
If you think about it realistically, it is absolutely absurd that employees should even contemplate dragging their employer through the High & Appeal Courts and, God forbid, possibly even the Supreme Court over what any sensible person would see as crew complements being a management decision.
I think with the advent of MF that BA will not only be looking to more streamlined CC employment contracts but will also not enter into anything like the depth, complexity and associated granting of IFCE operational control through any future MF union collective agreements.
BA will have more then learned its lesson on this one and these old style and unnecessarily detailed (now that BA has seized back control) agreements will fade away with the legacy CC themselves.
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Ancient Observer posted repeatedly his quite firm opinion that the present situation whereby BASSA feel as if they have a right to manage BA could only be changed by a significant shift in BA managers' approach.
I believe we are seeing the necessary shift towards BA regaining control of operations regarding its Cabin Crew. This Order contains language that can only be welcomed in the Board Room.
Will BASSA respond reasonably? We can only hope though I'm certainly not placing bets.
I believe we are seeing the necessary shift towards BA regaining control of operations regarding its Cabin Crew. This Order contains language that can only be welcomed in the Board Room.
Will BASSA respond reasonably? We can only hope though I'm certainly not placing bets.
Last edited by Diplome; 3rd Nov 2010 at 15:28. Reason: spelling..sigh
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legally binding agreements
a common thread in postings by 'Miss M' and others has been for the need to have legally binding agreements with BA. repeatedly she has rejected the 'assurances' that other crew have been willing to accept as too airy-fairy and incapable of enforcement.
i look forward to her comments on this reasoned judgment. 'contortionists' and 'hoops' come to mind!
i look forward to her comments on this reasoned judgment. 'contortionists' and 'hoops' come to mind!
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Does this mean that BASSA's collective agreements aren't worth the paper they're written on?
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As a lay person it was interesting reading the appeal judgement.
My totally informal and at times very wrongly worded / termed thoughts are:
The Cabin Crew initially won the argument that they were making. However the consequences of enforcing that argument would mean that BA would be unfairly disadvantaged and so BA's greater potential suffering won the day.
Some points / thoughts:
a) The Lady Judge found the way that that BA and the Unions were agreeing things between each other to be unusual and that really BA should have been managing rather than coming to a lot of agreements.
However it is the following that counted in the case.
b) There was a disputed Section 7 in an agreement. This needed examining to see if the individual bits in it were aspirational, (unenforcable and losable by a Cabin Crew member taking BA to court over a breach of the relevant point) or potentially enforceable and winnable by the Cabin Crew member if a breach was made, ie potentially contractable. (The other sections of the particular agreement were littered with enforcable and unenforceable.)
The Lady Judge initially concluded that the Cabin Crew were right and that the parts of the relevant section that they contested were enforceable.
Half-Time: Cabin Crew 1 BA 0
c) BA's turn and the judge then looked at a replay of the first half and realised that the impact of saying that the relevant bits were enforceable, could then lead to unfairness to BA and that this unfairness was never the intention of the original agreement.
(As an example if Cabin Crew Complements were enforceable in an individual's contract then it would give too much power to an individual Cabin Crew member if they refused to work when presented with a One Down situation.)
So she gave a point to BA and another as the disadvantage that BA would be in would be far worse than that of the Cabin Crew.
So overall it was:
Cabin Crew 1 BA 2
Victory for BA but a fair effort by the Cabin Crew.
(Yes I do know that it is more complex than I have written above.)
My totally informal and at times very wrongly worded / termed thoughts are:
The Cabin Crew initially won the argument that they were making. However the consequences of enforcing that argument would mean that BA would be unfairly disadvantaged and so BA's greater potential suffering won the day.
Some points / thoughts:
a) The Lady Judge found the way that that BA and the Unions were agreeing things between each other to be unusual and that really BA should have been managing rather than coming to a lot of agreements.
However it is the following that counted in the case.
b) There was a disputed Section 7 in an agreement. This needed examining to see if the individual bits in it were aspirational, (unenforcable and losable by a Cabin Crew member taking BA to court over a breach of the relevant point) or potentially enforceable and winnable by the Cabin Crew member if a breach was made, ie potentially contractable. (The other sections of the particular agreement were littered with enforcable and unenforceable.)
The Lady Judge initially concluded that the Cabin Crew were right and that the parts of the relevant section that they contested were enforceable.
Half-Time: Cabin Crew 1 BA 0
c) BA's turn and the judge then looked at a replay of the first half and realised that the impact of saying that the relevant bits were enforceable, could then lead to unfairness to BA and that this unfairness was never the intention of the original agreement.
(As an example if Cabin Crew Complements were enforceable in an individual's contract then it would give too much power to an individual Cabin Crew member if they refused to work when presented with a One Down situation.)
So she gave a point to BA and another as the disadvantage that BA would be in would be far worse than that of the Cabin Crew.
So overall it was:
Cabin Crew 1 BA 2
Victory for BA but a fair effort by the Cabin Crew.
(Yes I do know that it is more complex than I have written above.)
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Not really.
What she said was:
The agreements are not legally enforceable on employees individual contracts. So she had to rule for BA. BUT if they had been legally enforceable, then there was a lot going to the Cabin Crew position. However this was not relevant, due to agreements not being legally enforceable. The sections you quote from fall into the discussion of the position had the agreements been legally enforceable.
Or at least that is my take on this.
And I'm still at awe at some comments, such as:
Not all judges agreed, when 1 wrote it, and the other two agreed with her!
BA are paying Unites legal bill as BA got costs! when this means BA can claim their costs from Unite.
So BA won. BA even won costs (best they could get in a case like this, for "close" cases they generally don't award costs). Unite didn't signal they intend to appeal, so no leave to appeal given. (although given the latest offer with "drop all legal action" means it would be hard from them to appeal (start new legal action) and keep the offer)
Really looking forward to reading the "How it was won from my garden" - a fantasy by DH.
What she said was:
The agreements are not legally enforceable on employees individual contracts. So she had to rule for BA. BUT if they had been legally enforceable, then there was a lot going to the Cabin Crew position. However this was not relevant, due to agreements not being legally enforceable. The sections you quote from fall into the discussion of the position had the agreements been legally enforceable.
Or at least that is my take on this.
And I'm still at awe at some comments, such as:
Not all judges agreed, when 1 wrote it, and the other two agreed with her!
BA are paying Unites legal bill as BA got costs! when this means BA can claim their costs from Unite.
So BA won. BA even won costs (best they could get in a case like this, for "close" cases they generally don't award costs). Unite didn't signal they intend to appeal, so no leave to appeal given. (although given the latest offer with "drop all legal action" means it would be hard from them to appeal (start new legal action) and keep the offer)
Really looking forward to reading the "How it was won from my garden" - a fantasy by DH.
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The "money" paragraph:
emphasis added
The "what ifs" that precede this statement are simply background noise to the conclusion reach by all three judges regarding true construction.
...and I'm having a hard time believing that there is anyone out there that doesn't understand that Unite/BASSA will be paying BA's costs. No one could be so foolish as to misconstrue that award.
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 have 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 "what ifs" that precede this statement are simply background noise to the conclusion reach by all three judges regarding true construction.
...and I'm having a hard time believing that there is anyone out there that doesn't understand that Unite/BASSA will be paying BA's costs. No one could be so foolish as to misconstrue that award.
Cleverly disguised as a responsible adult
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None of these collective agreements is enforceable as between BA and the trade union
They seem to be upset with the offer that the loss of ST will be over their heads for the future - this could be far more serious.
(though I can't prove it, was a figure of £4.8 million not mentioned as BA's costs at the time of the earlier case?)
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As AV Flyer observed, this is much about the legacy fiasco of BA 'management' as anything.
However, time to move on into the world of reality and common sense. i have some slight sympathy for some CC, but it's a hard world out there [as all other parts of BA have noticed, and acknowledged].
In the final analysis, 'working one down' and having the CSD do something constructive is hardly Armageddon ... except for the CSDs who believe in the their own self-importance. If they were that good, they might have actually ensured a decent CW service on my last few sectors: as they didn't, I have no sympathy whatsoever.
However, time to move on into the world of reality and common sense. i have some slight sympathy for some CC, but it's a hard world out there [as all other parts of BA have noticed, and acknowledged].
In the final analysis, 'working one down' and having the CSD do something constructive is hardly Armageddon ... except for the CSDs who believe in the their own self-importance. If they were that good, they might have actually ensured a decent CW service on my last few sectors: as they didn't, I have no sympathy whatsoever.
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From that other thread, again:
I'll wager that when the BASSA lawyers see the BA legal bill, they will need smelling salts and a large glass (or two) of Pomeroy's house Claret.
Does anyone know what BA's costs were and how much this pointless legal challenge will have cost Unite?
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MPN11 has observed that
If you listen very carefully, MPN11, you will hear Giles Guthrie turning in his grave up at Westmount. 
That beautiful house, at the top of La Vallee de Rozel, must be a miserable place these days.
this is much about the legacy fiasco of BA 'management' as anything
That beautiful house, at the top of La Vallee de Rozel, must be a miserable place these days.
Last edited by Chuchinchow; 3rd Nov 2010 at 18:11.
None of these collective agreements is enforceable as between BA and the trade union 
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@ Chuchinchow ... noted 
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As Amicus has now formally recommended rejection of the offer as they clearly find the idea of BA running the business unpalatable, will BASSA follow suit?
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