Seniority (Last in First Out)
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Swordsman, as I said in my previous post, whether DANAIR's BALPA membership was around 90% or not is irrelevant, unless of course you are claiming that it was below 50%, a fact that BALPA would of course have announced at the speed of light whilst performing its' Pontius Pilate act.
Also what is the LEGAL relevance of DAN's bargaining position in relation to the enshrined contractual agreements of the pilots and the company taking them over. Most of this thread is concerned with the legality or not of LIFO seniority, and the support likely to be obtained from BALPA and the legal bodies. Read the title.
Also what is the LEGAL relevance of DAN's bargaining position in relation to the enshrined contractual agreements of the pilots and the company taking them over. Most of this thread is concerned with the legality or not of LIFO seniority, and the support likely to be obtained from BALPA and the legal bodies. Read the title.
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I do appreciate that this whole matter is very personal and evokes high emotion. However I do think that BALPA are in a difficult position.
As I see it the argument is that the contract of employment state Last in First Out, based on date group of joining. As CHFour comments this does not state base to base, or company wide. Therefore it is open to interpretation, and I think the company position is that at all time the contents of the contract of employment have to reflect current employment legislation - therefore if you look at the definition of Redundancy this refers to positions in affected locations of the business. The LIFO extract from the contract is non-specific, and is not sufficient to legally pursue company wide operation of the policy. Secondly the definition of redundancy is position and not person, so companywide LIFO could never used given the reasons given by the company for redundancy.
Another matter to consider is that if the company were to admit that the contract you hold has not been updated, the likely outcome would be a slapped hand. If a company amends your contract of employment, and you do not like it you can leave and seek compensation for unfair dismissal - however that compensation limit is about half the limit for unfair dismissal from redundancy. Additionally it is likely that the amendment needed to replace LIFO with a seniority reflected matrix would not be deemed a major amendment or infringement on you doing the job (the law is looking for major changes such as pay, or working issues that substantially disadvantage you).
The judge in the Rolls Royce case did not need to make a comment about blanket LIFO, and in expressing the comment it gives the clearest gauge on the likely legal outcome.
The company needs to put into effect a robust, fair and equally applied matrix. By serving the notices based on positions redundant, and in then following the matrix (giving credit in the matrix for length of service) it is most likely that they would be able to defend themselves in the event of any unfair dismissal claims. They can defend themselves by the fact that they have used best practise, and considered current legislation. This method does not disadvantage anybody unfairly.
One of the best sites for background info is the ACAS website.
I still stand by the fact that unless you have any major issues or disciplinaries with the company, then basically a base related seniority system will be seen.
CHFour - a company wide seniority list allows you to assess you position in the event of being offered, say, a command upgrade at another base. The seniority list you have will have base, and rank on it - therefore it is more useful than producing a base and rank per base specific list. I might not be so quick to rest my case m'lord!
An exemption to the law does not solve the problem - it takes the issue from one group of 26 people, to another group of 26 people.
SR71 - the contract I have seen is for somebody who has been with the company about 2-2.5 years, so a multi-base operation. You hold an airport pass, car park pass, your drop tray, your payslips etc etc all go to a single base. If you work at another base, you report to your 'home' base and get a tax or transport allowance to the other base - and hotac if needed. The CAA take a dim view on dual basing and I think the floating workforce concept would be hard to argue.
Easyjet would have a problem doing anything other than base to base on a matrix, due to them having EU bases and contracts. The thrust of these laws came from the EU and are more rigidly defined there.
In terms of age demographics, I do not think this will hold. Mainly due to the position not person definition of redundancy. This would still keep the matter base to base, and then you would only need a couple of young people to bring an unfair dismissal case. I think the age demographics argument is a hard one to take forward, and at best will still limit LIFO to base to base.
Moist - the legislation in question is varied and controlled by the CAA I believe. The variation is allowed due to the specific requirements of doing the job. LIFO is not a requirement to do the job.
My postman sees extremes of hot and cold (more often cold), he does not have set breaks, does not get crew food, there is not canteen - but I do admit he does get Sundays off.
I do not think the courts would look favourably on the idea of pilots being entitled to, or deserving of special treatment - the law sees you the same as a factory worker.
The actual arguement is that the contracts should have been amended and a redundancy policy agreed - on this I think you are totally correct, however the legal ramifications for the company are not, in relative terms, significant. They should get the paperwork into order, but it being incorrect is much less of a concern to the courts than them not following a due proces on redundancy.
As I say, not personal, just trying to be objective.
As I see it the argument is that the contract of employment state Last in First Out, based on date group of joining. As CHFour comments this does not state base to base, or company wide. Therefore it is open to interpretation, and I think the company position is that at all time the contents of the contract of employment have to reflect current employment legislation - therefore if you look at the definition of Redundancy this refers to positions in affected locations of the business. The LIFO extract from the contract is non-specific, and is not sufficient to legally pursue company wide operation of the policy. Secondly the definition of redundancy is position and not person, so companywide LIFO could never used given the reasons given by the company for redundancy.
Another matter to consider is that if the company were to admit that the contract you hold has not been updated, the likely outcome would be a slapped hand. If a company amends your contract of employment, and you do not like it you can leave and seek compensation for unfair dismissal - however that compensation limit is about half the limit for unfair dismissal from redundancy. Additionally it is likely that the amendment needed to replace LIFO with a seniority reflected matrix would not be deemed a major amendment or infringement on you doing the job (the law is looking for major changes such as pay, or working issues that substantially disadvantage you).
The judge in the Rolls Royce case did not need to make a comment about blanket LIFO, and in expressing the comment it gives the clearest gauge on the likely legal outcome.
The company needs to put into effect a robust, fair and equally applied matrix. By serving the notices based on positions redundant, and in then following the matrix (giving credit in the matrix for length of service) it is most likely that they would be able to defend themselves in the event of any unfair dismissal claims. They can defend themselves by the fact that they have used best practise, and considered current legislation. This method does not disadvantage anybody unfairly.
One of the best sites for background info is the ACAS website.
I still stand by the fact that unless you have any major issues or disciplinaries with the company, then basically a base related seniority system will be seen.
CHFour - a company wide seniority list allows you to assess you position in the event of being offered, say, a command upgrade at another base. The seniority list you have will have base, and rank on it - therefore it is more useful than producing a base and rank per base specific list. I might not be so quick to rest my case m'lord!
An exemption to the law does not solve the problem - it takes the issue from one group of 26 people, to another group of 26 people.
SR71 - the contract I have seen is for somebody who has been with the company about 2-2.5 years, so a multi-base operation. You hold an airport pass, car park pass, your drop tray, your payslips etc etc all go to a single base. If you work at another base, you report to your 'home' base and get a tax or transport allowance to the other base - and hotac if needed. The CAA take a dim view on dual basing and I think the floating workforce concept would be hard to argue.
Easyjet would have a problem doing anything other than base to base on a matrix, due to them having EU bases and contracts. The thrust of these laws came from the EU and are more rigidly defined there.
In terms of age demographics, I do not think this will hold. Mainly due to the position not person definition of redundancy. This would still keep the matter base to base, and then you would only need a couple of young people to bring an unfair dismissal case. I think the age demographics argument is a hard one to take forward, and at best will still limit LIFO to base to base.
Moist - the legislation in question is varied and controlled by the CAA I believe. The variation is allowed due to the specific requirements of doing the job. LIFO is not a requirement to do the job.
My postman sees extremes of hot and cold (more often cold), he does not have set breaks, does not get crew food, there is not canteen - but I do admit he does get Sundays off.
I do not think the courts would look favourably on the idea of pilots being entitled to, or deserving of special treatment - the law sees you the same as a factory worker.
The actual arguement is that the contracts should have been amended and a redundancy policy agreed - on this I think you are totally correct, however the legal ramifications for the company are not, in relative terms, significant. They should get the paperwork into order, but it being incorrect is much less of a concern to the courts than them not following a due proces on redundancy.
As I say, not personal, just trying to be objective.
Last edited by yellowvestman; 19th Dec 2008 at 18:00.
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yellowvestman,
That is all very erudite and considered. I won't comment on my individual objections...
My (simple) point is this:
Prior to 2006, the contract meant (to all and sundry), "X".
In 2006, the suggestion is that due to "Y", the contract can no longer mean "X".
My contention is that as "Y" does not apply, the contract still means "X".
Now we can argue about whether the contract was legally water-tight/ambivalent even prior to 2006, but what I don't think anyone can say, is that anybody was unclear about the intention of that clause prior to 2006. If they were, who exactly is "they"?
In this case, whatever happens if both parties seek to operate according to that common understanding, is a price they ought to pay for not having clarified the position one way or the other.
Of course, the chances of hell freezing over are probably higher....
That is all very erudite and considered. I won't comment on my individual objections...
My (simple) point is this:
Prior to 2006, the contract meant (to all and sundry), "X".
In 2006, the suggestion is that due to "Y", the contract can no longer mean "X".
My contention is that as "Y" does not apply, the contract still means "X".
Now we can argue about whether the contract was legally water-tight/ambivalent even prior to 2006, but what I don't think anyone can say, is that anybody was unclear about the intention of that clause prior to 2006. If they were, who exactly is "they"?
In this case, whatever happens if both parties seek to operate according to that common understanding, is a price they ought to pay for not having clarified the position one way or the other.
Of course, the chances of hell freezing over are probably higher....
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At the 'Irvine arbitration' regarding seniority/length of service etc. in the BOAC/BEA merger, it was established, as far as the questions before Lord (as he later became) Alexander Irvine were concerned, that the seniority system was a pilot introduced 'informal' non contractual arrangement which had the approval of the employer. Although no points of law were established at this arbitration, BALPA, in my view, missed a great opportunity to establish the ground rules for any future mergers/takeovers with regard to seniority. There then followed the Caledonian and Danair matters with more drawn out proceedings, again with no ground rules established.
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Yellowvestman,
You say that the company's neglect in not changing the contracts in 2006 to come into line with employment law will be seen as not significant by the courts ('a slapped hand' I believe you said)?
Try telling that to the scores of pilots who based their very futures at the time on the fact that LIFO was written into their contracts. They made a career decision to stay with the company and not pursue a career elsewhere based on their position on the seniority list. Perhaps the courts will listen when a claim is made for loss of career earnings based on breach of contract and misinformation?
You say that the company's neglect in not changing the contracts in 2006 to come into line with employment law will be seen as not significant by the courts ('a slapped hand' I believe you said)?
Try telling that to the scores of pilots who based their very futures at the time on the fact that LIFO was written into their contracts. They made a career decision to stay with the company and not pursue a career elsewhere based on their position on the seniority list. Perhaps the courts will listen when a claim is made for loss of career earnings based on breach of contract and misinformation?
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Pint'alfempty - your claim would be for unfair dismissal based on the company making an amendment to your contract that you can not accept. In current law the max claim is around £28k, or half the amount that can be claimed for unfair dismissal due to redundancy.
Last edited by yellowvestman; 19th Dec 2008 at 18:42.
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It's very clear the poster is putting in significant effort to push his perspective, dressing up supposition and opinion as fact in what amounts to an anti-LIFO editorial.
Compare what your management and union say then make your own conclusion; be wary of attaching undue weight to the opinions of those who publish their points of view anonymously on the internet!
Compare what your management and union say then make your own conclusion; be wary of attaching undue weight to the opinions of those who publish their points of view anonymously on the internet!
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Astrocaryum vulgare
Sorry but if I don't correct you Dog E will.
Correct quote
I only know because I had to Google it to see what you meant! Good point though.
Me thinks the lady doth protest too much...
Correct quote
The lady doth protest too much, methinks
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Who said anything about a quotation?
And I notice yellowvestman's posts have mysteriously been edited or disappeared altogether...
And I notice yellowvestman's posts have mysteriously been edited or disappeared altogether...
Last edited by Astrocaryum vulgare; 19th Dec 2008 at 23:03.
