Court of Appeal session, BA v BALPA - live broadcast on YouTube, 30 July 2019
Jul 31, 2019, 1:13 am
#78
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It comes down to, in my mind, what the test is for the union. Do they have to meet what the airline would require for their planning purposes, which is by its nature difficult for them to foresee as they are not management, or is the bar merely that they must provide a reasonable level of category, which the airline may use to carry out contingency planning. The court will need to take a view on whether the change to the relevant clause in revision 3 has the effect of changing from the first standard to the second.
I find it interesting that BA is suggesting that the further information they require is Long Haul vs. Short Haul fleet, whereas I would image what they really require is type ratings. This strikes me as low hanging fruit, noting that BALPA have provided the rank as category, I would presume based off the Virgin Atlantic case. I can foresee a scenario, which I think the legislative change was designed to prevent, whereby BA will challenge a future ballot notice with fleets, for not being sufficient for their planning purposes as it does that cover type ratings.
I find it interesting that BA is suggesting that the further information they require is Long Haul vs. Short Haul fleet, whereas I would image what they really require is type ratings. This strikes me as low hanging fruit, noting that BALPA have provided the rank as category, I would presume based off the Virgin Atlantic case. I can foresee a scenario, which I think the legislative change was designed to prevent, whereby BA will challenge a future ballot notice with fleets, for not being sufficient for their planning purposes as it does that cover type ratings.
Jul 31, 2019, 1:32 am
#79
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As mentioned upthread, there’s an element of straying into GDPR territory here.
BALPA should only be keeping the data that they need for their own purposes. This should be basic membership and any information for CPD I would have thought.
Is this now going to say that they need to keep a shed load more just in case they need to provide it to employers in the event of industrial action?
BALPA should only be keeping the data that they need for their own purposes. This should be basic membership and any information for CPD I would have thought.
Is this now going to say that they need to keep a shed load more just in case they need to provide it to employers in the event of industrial action?
Jul 31, 2019, 1:38 am
#80
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I’ve no idea what the Court will decide, but if they decide in favour of BA, I certainly hope that the union will take the case to the ECHR where I would imagine them to have a strong chance of winning. I suspect that the ba view of the world is likely untenable from the point of view of the uk’s international commitments on the right to strike as a fundamental freedom.
Jul 31, 2019, 1:38 am
#81
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Jul 31, 2019, 1:50 am
#82
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I’ve no idea what the Court will decide, but if they decide in favour of BA, I certainly hope that the union will take the case to the ECHR where I would imagine them to have a strong chance of winning. I suspect that the ba view of the world is likely untenable from the point of view of the uk’s international commitments on the right to strike as a fundamental freedom.
Jul 31, 2019, 1:56 am
#83
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I haven’t read/watched the case but from the comments here it doesn’t sound like there’s much of an issue for either anyway? If BALPA lose would it not be simpler just to rerun the ballot/strike notice as required?
Jul 31, 2019, 2:11 am
#84
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I think the issue may well comedown to a simple question. How is a union to know what categories an employer finds acceptable? What is clearly ot acceptable, in law, is that each strike ballot may be injected just because the employer decides that the I ion has not split those to be be balloted into sufficiently detailed categories. There needs to be some definition and clarity.
Jul 31, 2019, 2:28 am
#85
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I’ve no idea what the Court will decide, but if they decide in favour of BA, I certainly hope that the union will take the case to the ECHR where I would imagine them to have a strong chance of winning. I suspect that the ba view of the world is likely untenable from the point of view of the uk’s international commitments on the right to strike as a fundamental freedom.
One could also argue that if BALPA doesn't need to know if they are shorthaul or longhaul then do they need to know what type rating they are either. All tbey really need to know is that they are a pilot at X company.
Any one know what is on the application form to join BALPA and what you need to let them know as you progress your career?
Jul 31, 2019, 3:02 am
#86
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(Uninformed point I’m terms of the proceedings which I did not see so just based on peoplr’s comments)
i think there is also an issue of when disaggregation starts becoming a threat to privacy and means that a union might expose its members to possible intimidation or retaliation from the company. Given the emphasis on privacy in the current legal order and depending on the nature of the union’s membership which I do not know, i wonder if this might have been an argument worth including.
i think there is also an issue of when disaggregation starts becoming a threat to privacy and means that a union might expose its members to possible intimidation or retaliation from the company. Given the emphasis on privacy in the current legal order and depending on the nature of the union’s membership which I do not know, i wonder if this might have been an argument worth including.
There is no threat to privacy in the current proceedings. Names (nor any other identifying information) do not fall under the 'categories' under consideration. In fact names are specifically excluded.
Jul 31, 2019, 3:03 am
#87
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It is common ground between the parties that BALPA has the information on shorthaul and longhaul numbers. The law has specific provisions around what information the union might draw upon, that which is held by officers or employees, so I think for this case it doesn't help to hypothesise about what information the union does not need to hold, as it is already known to have it.
I very much agree with Waterhorse, the issue is how can the union know what is required and what is to stop the employer changing their mind and seeking an injunction. The test must be whether the union has provided reasonable categories.
I very much agree with Waterhorse, the issue is how can the union know what is required and what is to stop the employer changing their mind and seeking an injunction. The test must be whether the union has provided reasonable categories.
Jul 31, 2019, 3:14 am
#88
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The appeal raised valid legal issues where the law needs clarification and the decision could go either way. The long-haul/short-haul fleet argument I found credible and so it will not surprise me if the court finds for BA on this issue, given previous judgments of the Court of Appeal on similar matters.
I think I should mention that my comments are based on the legal issues raised in the appeal, not on the rights or wrongs of the proposed industrial action or BA's attitude in dealing with the dispute.
Jul 31, 2019, 3:19 am
#89
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I’m unclear on how the information helps planning anyway? As I don’t believe you have to vote to strike in order to go on strike, and vv ie you don’t have to go on strike just because you’ve voted to strike. So they could have all the information about who on what plane/fleet/at what rank voted which way and it would tell them nothing at all about which people will actually turn up at work on strike days
or am I missing something?
or am I missing something?
Jul 31, 2019, 3:21 am
#90
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The ECHR has taken several decisions confirming it sees the fundamental right to strike as covered by art 11 (eg Ognevenko v Russia in 2018). How it scopes that right is not always clear as states have scope to legislate but some unions have been successful at getting cases upheld most legal specialists thought they would not. Ecj is an entirely separate route that would require some breach of eu ref or directive. I don’t know/think that it is the case here
