UK: Connection With The UK Examined Again In Context Of Trade Union Recognition

Netjets v (1) Central Arbitration Committee and (2) Skyshare [2012] EWHC 2685

Skyshare is an independent trade union. It put forward an application for union recognition in respect of all of Netjets' pilots. The pilots made up the relevant "bargaining unit" for this purpose. The majority of the pilots were based outside of the UK.

Netjets argued that Skyshare did not have the right to apply for recognition. It did so on the basis that there were no relevant workers in the bargaining unit, as all the pilots were outside of the scope of the Trade Union Labour Relations (Consolidation) Act 1992 due to their being based abroad. The Central Arbitration Committee ("CAC") rejected this argument and held there was a sufficiently strong connection between the pilots and Great Britain to give Skyshare the right to seek recognition.

The High Court agreed with CAC's decision. Although the pilots were based abroad, were paid in local currency, and HR functions were run out of Lisbon, their contracts of employment were stated to be governed by English Law and subject to the exclusive jurisdiction of the English courts. In addition, both Netjets and Skyshare are registered in Great Britain.

Implications

This decision applies the test of whether there is a "sufficiently strong connection with the UK" to the issue of collective bargaining rights under TULRCA.

While the High Court did not rely on the point in reaching its conclusion, it agreed with Skyshare's submission that the legislation must be read in a way that gives effect to the right of employees under Article 11 of the European Convention on Human Rights "to bargain collectively with the employer". The Court noted that if the pilots had been denied the right to collectively bargain with Netjets in the UK, then they would not have been able to enforce the right at all. 

It raises the prospect of UK trade unions seeking to be recognised and to collectively bargain in respect of employees outside the UK, where the employer is a UK company.

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