The definition of a “collective agreement” (in the Trade Union and Labour Relations (Consolidation) Act 1992) is “any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers’ associations and relating to one or more” of seven specified matters including, for example, terms and condition of employment.
In some continental jurisdictions the terms of a collective agreement are automatically binding between a particular employer and a particular employee. That is not the case in the UK where the relationship between an employee and an employer is governed by the individual contract between them. Whether the terms of a collective agreement are binding as between them depends mainly on whether the individual’s contract of employment provides for that. Case law also shows whether the term in question is “apt for incorporation” into an individual’s contract is important – for example it has been held that selection procedures for redundancy set out in a collective agreement are not apt for implied incorporation into an individual’s contract.
A legal aspect of the recent, and still unresolved, dispute between British Airways and their cabin crew over BA’s decision to reduce the minimum number of cabin crew on long haul flights turned on exactly this point. The cabin crew alleged that a collective agreement between BA and the Unite trade union which stipulated crew complement levels was incorporated into their individual contracts of employment and was enforceable by them on an individual basis. BA accepted that some collective agreements negotiated between it and Unite were so incorporated but argued that the particular provisions relating to crew complements were not. BA argued that these terms were not apt for inclusion in individual contracts and that the parties to the collective agreements had never intended the crew complement provisions to be enforceable by individual employees.
BA won the original case in February 2010. It has now won again in the Court of Appeal. The Court of Appeal was persuaded 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 the relevant part of the collective agreement would be enforceable by individual employees. If that were so it would mean that an individual or a small group of cabin crew members could bring a flight to a halt by refusing to work without a full complement of cabin crew. That was an unthinkable consequence and could not have been intended. The Court of Appeal unanimously agreed that BA and Unite did not mean the relevant term to be individually enforceable when it was agreed.
