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For those that are interested -
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. |
@Mariner9
To be fair, I have sympathy with Unite's decision to appeal the original judgement in the circumstances So will you be making a donation ?:) |
From the above court judgement:
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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. |
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. |
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. |
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! |
Does this mean that BASSA's collective agreements aren't worth the paper they're written on? |
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.) |
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. |
The "money" paragraph:
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. |
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?) |
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. |
From that other thread, again:
Does anyone know what BA's costs were and how much this pointless legal challenge will have cost Unite? |
MPN11 has observed that
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. |
None of these collective agreements is enforceable as between BA and the trade union :ouch: |
@ Chuchinchow ... noted :ok:
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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?
. LATEST NEWS UPDATES |
According to the Amicus letter, BASSA are going along with the Unite line.
Did anyonone predict this? Be honest. Better still, can anyone explain it? |
MissM, over on the crew thread, has plumbed new depths with her sophistry and her complete disregard for logic:
Our court case was not about imposition which our dispute is about. |
But as is being suggested it needed Unite, BASSA & CC89 to recommend the offer, so it might, very shortly, be withdrawn!
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So much for the Union (and its Branches) agreeing to recommend the offer to its members as an agreed BA stipulation in the latest Unite/BA negotiations.
Over to BA if they wish to cry 'foul' and pull the offer....... |
Originally Posted by Haymaker
According to the Amicus letter, BASSA are going along with the Unite line.
Did anyonone predict this? Be honest. Better still, can anyone explain it? My first explanation is as a sub-plot to this whole debacle BASSA & CC89 are at odds with each other and as they appear to be taking different positions we can only assume their hatred of each other is greater than what they feel individually towards BA! I guess it could just be a throw your toys out of the pram hissy-fit in response to today's ruling. AVF |
Une folie de grandeur?
MissM (again):
Quote: Also, if NO results in a strike, which may well be unprotected, there is always your job to lose potentially. Far from nothing I think. Unquote. Don't go down this path again. Or, are you suggesting that BA will issue SOSR? We have been hearing this rumour for probably a year. If they were serious about it they would have issued it a long time ago. Let's drop SOSR. |
Who is "Miss M"?
Given 'her' didactic outpourings, I have reservations about whether 'she' is real or not. Especially as she toes [not tows'] the Party line consistently. However, I do not care about 'Miss M'. The endless denial of reality, the dogma and the outpourings of 'Group-speak' say enough for me. What I DO care about is the survival of BA, in all its disparate parts. The bickerings of a few CSDs, who need a reality check on where they stand in the 'Great Order' of employment, does not concern me one jot. The 'part-time lemmings', supplementing their partner's salary, don't bother me much either. However, best wishes to all good BA staff, and perdition to the destructive and incompetent and idle. I do somehow feel that BA will be a better place without the latter. |
After such a long laborious attempt to understand Miss M who appears not to even understand herself with her mutterings that have no logic. She (if this a correct assumption) - but she might be a He - fires off salvo after salvo of sheer boredom and who must now decide if she is sustainable. Now it is time, in my view, that she should pack her bags and go. She has lost the plot and spoils both threads by her intransigence and boring attempts to justify herself. Since she cannot after today believe BASSA so she should leave BA too.
Its a lost cause - whoever you are - and we would all now be better of without her and get on to some level headed discussion. Now, where were we..........................? |
Some months ago I, along with many others, declared that the dispute was over & Bassa's position was totally untenable.
As far as I can see since then nothing has changed , so moving on....... |
Duncan opines on today's events (ignoring the Court of Appeal ruling!)
Just come in from various child minding duties (Louise on a trip) so forgive my late entry into the debate. I think I will let the dust settle a bit before making massive comment but in the meantime can I say this. A lot of what is said publically these days has to be taken with a pinch of salt and a lot of reading between the lines. I have no problem with AMICUS’s statement - I have been waiting for 21 years to hear them say what they said tonight and I never thought it would happen. But it has and fair play to them - they are a different beast from the one BA gave birth to back in 1989. They have every right to announce what they have - there is no real discord between us. Obviously tactically they have chosen to "play" things differently to us. If we had done what they have now done there would be no ballot and many could then criticise us for not facilitating you, the membership, a chance to at least be be heard. My view is - and always will be - everyone has got to have a chance to cast their vote, whether they are rabid constant forum users or live in the outback of Australia with no contact with the outside world. That is a basic right of union membership and to ensure that would happen we (BASSA) had to take steps that most of us felt uncomfortable with, but it was for the greater long term good. With the greatest of respect, something else you have to consider here. No matter how much you are - understandably - frustrated with Unite, when it comes to calling IA ballots they have the final say. So falling out with them could mean cutting off our own noses to spite our face. Think hard on that. The BASSA committee know what we are doing, this is not a 2-way dogfight between us and BA - there is a third interested party in this high stakes poker game and we must be aware of that in all our tactical moves. Everything is done with a purpose, please bear that in mind. So where to we go from here - well WW could spit his dummy on the back of AMICUS’s statement or he might prefer to let things ride - we will know soon enough. The ballot is still not ready to go out because BA are unhappy with us including the reps letter which we published on this website on Sunday. Is it right that BA should dictate what we say in a preamble to a ballot, despite the fact it has been on our website? That debate was taking place tonight before AMICUS walked into the headlights. The whole thing is quite bizarre. But please remember BA are reading every word. AMICUS BASSA and UNITE need to keep united. personallyI think WW is vulnerable, there are cracks and doubts much deeper than ours so, let’s just keep our nerve. I think there will be some more developments over the next 48 hours and I will get back to you when and if. Please keep calm, I am not unduly worried by any of today’s events - remember this is a game of poker and that is not trying to belittle the stress, strains and confusion I know you are all feeling. Keep the Faith. It has been a year since we started down this never ending road but we have come too far to be diverted from the the cause that set us on the road in the first place .Rgds Duncan |
Drunken Folly's time is up. Meanwhile, the airline gets on with things...
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Given 'her' didactic outpourings, I have reservations about whether 'she' is real or not. Especially as she toes [not tows'] the Party line consistently. However, I do not care about 'Miss M'. The endless denial of reality, the dogma and the outpourings of 'Group-speak' say enough for me. |
More than a few of the CC are still going on about a "No right to strike" clause in the offer ............. which is not true.
Do they even read through these offers for themselves, or just go along with what is discussed in the galley? |
I wonder if it's too far fetched to suggest that BASSA was well aware that Amicus would do this in order to get BA to pull the offer, thus allowing them to go straight to a strike ballot.
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But why would BA remove the offer?
Just because they could doesn't mean they will. It would seem to be logical for them to wait and see the result of the ballot and act accordingly rather than withdraw the offer now. |
I have to agree with BetterByBoat, there is no value in withdrawing the offer now. All that would achieve is to pave the way towards a potential Christmas strike. The CC89/Amicus part of UNITE is relatively small and it's membership are traditionally less militant than the BASSA section. The chances are that they will have little impact on the consultative ballot, given the tendency to apathy in these exercises.
BA have all they need to withdraw the offer, or to vary it's terms - it was a condition that all parties would recommend the offer, this condition has not been met, but if there is still acceptance of the offer then this is irrelevant the dispute will be over. An end to the dispute is probably the biggest issue for BA. They also have the option of denying the CC89 members the fruits of the offer now should the deal be accepted, ie the BASSA members will get their ST seniority back in 3 years but not the CC89 people. or perhaps not the paydeal part of it, or nothing at all. They have not met their part of the deal why should they gain any benefit from it should it be accepted? How many CC89 members are there out there? Can they have any effect on BA without the support of their BASSA colleagues? Silly and dangerous games form the irrelevant CC89 reps. |
Please keep calm, I am not unduly worried by any of today’s events - remember this is a game of poker and that is not trying to belittle the stress, strains and confusion I know you are all feeling. Keep the Faith. It has been a year since we started down this never ending road but we have come too far to be diverted from the the cause that set us on the road in the first place .Rgds Duncan A rubber gun is all he has. Yet he still thinks he's king of the castle. Time for a siege I reckon. The BASSA members should get rid of him. Surely the good reps find him an embarrassment. |
Please may we stop the character assassinations of Duncan Holley.
Until the next elections, he is the legitimate secretary of BASSA. Personnally, I am very much against the BASSA way of working, but character assassination is puerile and stupid. |
cc89 rejection
is the cc89 rejection at all linked to one or more of their reps under suspension and/or threat of dismissal?
i just dont understand what the unions think can be gained by this and/or any furthur negotiations (if they bothered to attend any that is!) and/or any industrial action that would only jeapordise their members futures and careers within BA i dont understand either how supposedly mature individuals believe the rhetoric that eminates from the unions and are not able to research the facts |
"The BASSA committee know what we are doing"
Whilst I agree that "character assassination is puerile and stupid"
I would be very worried by the following from bassa, "The BASSA committee know what we are doing" For the last 18 months, I've been convinced that this dispute is primarily the fault of BA management in the past. However, I cannot think of a single instance in the last 18 months when "The BASSA committee know what we are doing" has been either accurate or true. |
Originally Posted by wascrew
(Post 6038311)
is the cc89 rejection at all linked to one or more of their reps under suspension and/or threat of dismissal?
i just dont understand what the unions think can be gained by this and/or any furthur negotiations (if they bothered to attend any that is!) and/or any industrial action that would only jeapordise their members futures and careers within BA i dont understand either how supposedly mature individuals believe the rhetoric that eminates from the unions and are not able to research the facts It would seem that in his hurry to get something moving Tony Woodley has ridden rough shod over a section of employees who will be affected, without even a nod to their thoughts. It's amazing how T&G and Amicus are still so divided within BA. If the moderates are now becoming involved and not being as predictable as some on here thought they would be, it could become interesting again....;) |
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