QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BRITISH BROADCASTING CORPORATION||(CLAIMANT)|
|CENTRAL ARBITRATION COMMITTEE||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR T LINDEN (MR J LADDIE) (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
MISS S MOOR (instructed by Thompsons, London) appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
Friday, 6th June 2003
MR JUSTICE MOSES: Introduction
"A trade union (or trade unions) seeking recognition to be entitled to conduct collective bargaining on behalf of a group or groups of workers may make a request in accordance with this Part of this Schedule."
Section 296(1) provides, so far as material, as follows:
"(1) In this Act 'worker' means an individual who works, or normally works or seeks to work -
(a) under a contract of employment, or
(b) under any other contract whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his or,
(c) in employment under or for the purposes of a government department ... in so far as such employment does not fall within paragraph (a) or (b) above."
"7. The process commences with the trade union making a request for recognition from the employer. Certain conditions must be met if the request is to be treated as valid within the terms of the legislation ...
8. The employer is given 10 working days to agree the request. If the request is accepted that is the end of the matter. If it is rejected or there is no response, then the union applies for recognition. This is made pursuant to paragraph 11(2) ...
9. The second stage is the acceptance or otherwise of the application. The CAC must decide two questions in order to determine whether the application can be accepted ...
10. The third stage is the determination of the bargaining unit [the principal issue in that case]."
By paragraph 2(2) of Schedule A1:
"(2) References to the bargaining unit are to the group of workers concerned (or the groups taken together).
(3) References to the proposed bargaining unit are to the bargaining unit proposed in the request for recognition."
Paragraph 3(3) provides:
"References to collective bargaining are to negotiations relating to pay, hours and holidays; but this has effect subject to subparagraph (4)."
The decision of the panel
"(a) a high level of skill, with sub-specialisms. The absence of an academic test is not fatal to this.
(b) involvement in short-term engagements;
(c) Schedule D tax status and liability to VAT;
(d) the flexibility to operate variously as individuals, partnerships, trading names and companies;
(e) working for a range of organisations, at an arm's length relationship;
(f) the right to substitute;
(g) provision of equipment, which may vary according to their sub-specialism;
(h) the existence of a professional association;
(i) rates being subject to negotiation;
(j) a relatively high level of earnings;
(k) work with an artistic flavour, of a kind that distinguishes a painter and decorator, on the one hand, from an interior designer, on the other."
"21. The second issue for the Panel to determine is whether the relationship of the wildlife cameramen/women with the Company is that of professional and client. The Panel considers that it is the relationship between these individuals and the Company that is material, not the individuals' general status. It is therefore satisfied that it is able to decide this point on the basis of the evidence before it. It was common ground between the parties that there is no legal definition of a profession. The Panel notes that, in contrast to other legislation, the definition of a 'worker' in the Act does not exclude clients or customers of a 'business undertaking'. The reference to clients and customers of a business undertaking in that other legislation, in addition to the professional/client relationship, suggests that a professional cannot be equated with a person who operates a business undertaking. A professional cannot, therefore, be compared merely with an amateur. We are persuaded that, as an exception to the definition of a 'worker', the term professional should be narrowly construed. We do not seek to put forward a comprehensive definition of the term. However, we consider that some form of regulation of a professional's field of activity by a body covering those engaged or seeking to be engaged in that activity is required in order for any individual to be categorised as a 'professional'. This test is not met by the cameramen/women engaged by the Company. It was common ground between the parties that they may be members of the International Association of Wildlife Filmakers, which was described by the Union in its application as a 'professional association'. However, Mr Spence, the Union's Assistant General Secretary, the signatory to the application, informed the Panel that he had used this term in a colloquial sense and that membership of the association was not compulsory. The voluntary nature of membership was not disputed by the Company. We consider that the other arguments put forward by the Company for a professional/client relationship are more consistent with the relationship of the client or customer of a business undertaking than with a professional/client relationship. We note the Company's evidence that no technical standards or procedures are currently issued to Freelances pursuant to clause 10.2 of the Freelance Terms of Trade, relied upon in the Union's submission, and this clause has played no part in our decision.
22. The final issue for the Panel to determine is whether the individuals within the proposed bargaining unit work, or normally work or seek to work for the Company. The Union has defined its proposed bargaining unit by reference to the Company's 'Contacts List', described in paragraph 8 above. Ms Hamilton, a Production Executive at the Company's Natural History Unit, confirmed that the individuals detailed in the spreadsheet referred to in paragraph 14 above are the same as those on the Company's Contacts List. Mr Hellier stated that in his view everyone on the Contacts List would like to be offered work by the Company. In view of this evidence, the Panel concludes that individuals who are on the Contacts List, if they do not work or normally work under a contract whereby they undertake to do or perform personally work or services for the Company, can be regarded as seeking under such a contract for the purposes of section 296(1). Mr Hellier indicated that individuals who are not on the Contacts List may also be offered work. However the fact that there may be other individuals not within the proposed bargaining unit who may have the potential to fall within the definition of a 'worker' is not material to the issue that the Panel is required to decide."
Approach of the court to the decision of the panel
"In exercising its functions under this Schedule in any particular case the CAC must have regard to the object of encouraging and promoting fair and efficient practices and arrangements in the workforce, so far as having regard to that object is consistent with applying other provisions of this Schedule in the case concerned."
"I would also venture to endorse in strong terms what was said by the judge in paragraph 23 of his judgment, that the CAC was intended by Parliament to be a decision making body in a specialist area that is not suitable for the intervention of the courts. Judicial review, such as is sought in the present case, is therefore only available if the CAC has either acted irrationally or made an error of law."
"The courts have no part to play other than to exercise their function of judicial review in the event of a challenge to the legality of any act or omission on the part of the bodies entrusted by statute with the duty of promoting the improvement of industrial relations."
At page 442E-F he continued:
"The courts will not tell a statutory body how it is to conduct its business or what decision, report or recommendation it is to make. They will invalidate the exercise of a statutory body's judgment or discretion only if satisfied that no reasonable person charged with the body's responsibilities under the statute could have exercised its power in the way that it did."
First issue - error of law
"'Worker' means an individual who has entered into or works under ... any other contract ... whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual [my emphasis]."
A similar definition is adopted in the Employment Rights Act 1996 at section 230(3).
"It seems to us that the best guidance is to be found by considering the policy behind the inclusion of limb (b). That can only have been to extend the benefits protection to workers who are in the same need of that type of protection as employees stricto sensu - workers, that is, who are viewed as liable, whatever their formal employment status, to be required to work excessive hours ... to suffer unlawful deduction from their earnings or to be paid too little. The reason why employees are thought to need such protection is that they are in a subordinate and dependent position vis-a-vis their employers: the purpose of the Regulations is to extend protection to workers who are, substantively and economically, in the same position. Thus the essence of the intended distinction must be between, on the one hand, workers whose degree of dependence is essentially the same as that of employees and, on the other, contractors who have a sufficiently arm's-length and independent position to be treated as being able to look after themselves in the relevant respects."
"The first question that has been debated before us is this: 'Is the question whether a man is carrying on a profession or not a matter of law or a matter of fact? I do not know that it is possible to give a positive answer to that question; it must depend upon the circumstances with which the Court is dealing."
He went on:
"... between those two extremes there is a very large tract of country in which the matter becomes a question of degree; and where that is the case the question is undoubtedly, in my opinion, one of fact..."
"In my view it is impossible to lay down any strict legal definition of what is a profession, because persons carry on such infinite varieties of trades and businesses that it is a question of degree in nearly every case whether the form of business that a particular person carries on is, or is not, a profession. Accountancy is of every degree of skill or simplicity. I should certainly not assent to the proposition that as a matter of law every accountant carries on a profession or that every accountant does not. The fact that a person may have some knowledge of law does not, in my view, determine whether or not the particular business carried on by him is a profession ... Art is a matter of degree, and to determine whether an artist is a professional man again depends, in my view, on the degree of artistic work that he is doing. All these cases which involve questions of degree seem to me to be eminently questions of fact, which the Legislature has thought fit to entrust to the Commissioners, who have, at any rate, from their very varied experience, at least as much knowledge, if not considerably more, of the various modes of carrying on trade than any judge on the bench."
He then emphasised that the matter was a matter of degree for the Commissioners and concluded by commenting:
"... I myself am disposed to attach some importance in findings as to whether a profession is exercised or not to the fact that the particular man is a member of an organised professional body with a recognised standard of ability enforced before he can enter it and a recognised standard of conduct enforced whilst he is practising it. I do not for a moment say it settles the matter, but if I were deciding a question of profession I should attach some importance to that particular feature."
"... before one can say that a man is carrying on a profession, one must see that he has some special skill or ability, or some special qualifications derived from training or experience. Even there one has to be very careful, because there are many people whose work demands great skill and ability and long experience and many qualifications who would not be said by anybody to be carrying on a profession."
At page 167 du Parcq LJ pointed out that the categories were not closed and as time has moved on so did the number and status of the professions.
"We consider that the other arguments put forward by the Company for a professional/client relationship are more consistent with the relationship of the client or customer of a business undertaking than with a professional/client relationship."
Second issue - "seeking to work"
Third issue - detailed evidence