United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D ROY (of Counsel) instructed by: Messrs Andrew Keen & Company 2 The Shrubberies George Lane South Woodford London E18 1BE
For the Respondents	MR D BROWN (of Counsel) instructed by: USDAW Legal Services 188 Wilmslow Road Manchester M14 6LJ

SUMMARY

Were the employees entitled to enhanced redundancy pay? This depended on whether rights had been incorporated from the collective agreement into the individual contract. For weekly paid staff, their contracts expressly incorporated terms from collective agreements. For monthly paid, there was no such express clause but the collective agreements had in practice been applied to all staff alike. The enhanced terms were found in a series of collective agreements negotiated over some years. The Agreement for 2000 for the first time set an end date for the operation of the agreement. The employers contended that as a consequence the enhanced terms came to an end at the same time. The employment tribunal found that in fact the collective agreement continued, and that even if it did not, the terms still had effect in the individual contracts of employment. As for the monthly staff, they had in fact received the benefits and it was essentially a contractual right for them also. The EAT broadly agreed with this analysis and rejected the employer's appeal. Certain observations on the relationship between collective agreements and individual contracts.
 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This is an appeal against the decision of the Employment Tribunal sitting at Sheffield which unanimously held that the Respondent and some 33 other employees, who had been dismissed by reason of redundancy, were entitled to enhanced redundancy payments. The Employers now appeal that decision on the ground that the Tribunal erred in the way in which it construed the relevant contracts of employment of these employees. They contend that although there had been rights to enhanced payments, they had come to an end prior to their contracts being terminated.

The issues in brief

2. The employees were all originally employed by Stonegate Food Ingredients Ltd. In September 2004 they were all transferred to Framptons Ltd, the Appellants. The TUPE Regulations applied to the transfer.
3. In December 2004 they were dismissed by reason of redundancy. The question for the Tribunal was: what was their redundancy entitlement?
4. The employees submitted that they were entitled to enhanced redundancy payments which had been negotiated by their trade union, USDAW, with the previous employers, Stonegate, (and indeed its predecessors) over many years. They contended that the enhanced redundancy payments had been incorporated into their original contracts of employment. For some staff - the weekly staff - this was because the terms had been expressly incorporated into their contracts. For other monthly salaried staff they did not have such a clause but it was submitted that in practice they had for many years been treated in precisely the same way and should therefore be given the same rights. The Collective Agreement had been applied indiscriminately to everyone.
5. The Appellants submitted that the last Collective Agreement which contained those enhanced terms had come to an end in November 2002 and that thereafter these terms no longer continued to be part of the employment contracts. It was conceded that until that time they would have done so. The employers also contended that the Collective Agreements had never, in any case, been incorporated into the contracts of the monthly salaried staff. The Tribunal found for the employees, and the employers contend that they were wrong to do so. With that thumb nail sketch of the issues in this case, we turn to consider the background facts.

The facts

6. Collective bargaining between Stonegate and USDAW was well-established. The earliest agreement which was put before the Employment Tribunal was a Collective Agreement between Stonegate's predecessors (Eden Valley Foods) and the Union, which was signed in 1989. It contained a clause headed 'Period of Agreement' which said this at paragraph 3.1:

"3.1 It is agreed that this Agreement shall be applicable with effect from 1 October 1989."

In addition, there was a section of the Agreement headed 'Security of Employment'. It dealt with matters such as consultation, measures to avoid redundancy, basis of selection, and there was a heading 'Compensatory Payment' which said at paragraph 11.5.:

"11.5. Redundancy entitlement is detailed on the Matrix shown in Appendix II. Any payments due under the State Redundancy Scheme are already included in these figures.

N.B. The Matrix does not include the terminal grant."

There was then a separate provision dealing with 'Terminal Grant', which involved an additional payment to the employees made redundant. The Matrix identifying the amount of the redundancy payments is set out, as the clause indicates, in the Appendix to the Agreement. The number of weeks paid depends on age and length of service.

7. Thereafter, there were Collective Agreements signed on a regular basis. Before the Employment Tribunal there were three agreements, one made in 1996, one in 1998 and the other in 2000. They all contained the provisions which had originally been found in the 1989 Agreement and to which we have made reference. Each, save the Agreement in 2000, also stated in the section 'Period of the Agreement' that it was to be applicable with effect from a particular date and no termination date was given in the collective Agreement itself. The Agreement in 2000 differed to this extent, that it provided as follows:

"It is agreed that this Agreement shall be applicable with effect from 1-11-00 and last until 1-11-02."

The other relevant provisions in the Agreement mirrored precisely those in the earlier Agreements, and which we have set out.

8. In fact the Tribunal found that even after 1 November 2002 the parties acted as though that Agreement were continuing in force. For example, there was a new wage agreement which was negotiated and resulted in a two-year pay deal to run from November 2002. Negotiation rights continued thereafter, as did the right to Union representation in such areas as disciplinary procedures. Union subscriptions continued to be deducted at source. Management acted at all times as though the Agreement continued. Termination payments were made in accordance with the Agreement, and indeed the employees were told in terms at the time of transfer that they would be entitled to the enhanced terms in accordance with the Agreement. In short, life continued to all intents and purposes in precisely the same way after November 2002 as it had earlier.

The contractual terms

9. The Statement of Terms and Conditions of the weekly operatives said this, after setting out the employer and the date of employment:

"Further Terms and Conditions of Employment are contained in the Trade Union Agreement".

Mr Roy, for the Appellant, points out correctly that the Tribunal never analysed what "Further" meant. However, the statement itself referred to some terms expressly, and we think it could only have meant terms other than those. They would have included the enhanced redundancy terms.

10. The terms and conditions of the monthly salaried staff were different. There, the references were not to the Collective Agreement but to the Employee Handbook. We have not seen that document but it was apparently produced to the Tribunal below.
11. On 3 September 2004 the General Manager at Stonegate Foods, Mr Mark Ellis, issued a Notice of Intention concerning the transfer of the business to the Appellants. That Notice specifically referred to the fact that:

"The Union agreement that covers this site gives USDAW the right to represent all staff during this type of situation."

He therefore obviously assumed that the Agreement was still in force. Similarly, as we have said, the Human Resources Manager told the employees that they would receive the enhanced redundancy payments in accordance with the Agreement.

12. Circumstances changed however, when Mr Morse, who acted as a consultant to Framptons Limited during the transfer, queried the basis on which these payments were being made. He noted that there was an end date on the collective Agreement and took the view that the redundancy terms were no longer applicable, having ceased to be binding once the Collective Agreement had terminated.
13. An enhanced payment was in fact made to one employee, Mr Rose, on 6 September but it was, the Tribunal found, deliberately calculated in a way which was intended to conceal the fact that it was reflecting the terms of the Agreement, and it was stated to be an ex-gratia payment.
14. Between 24 and 27 September employees were given notice of a change of their employer to Framptons, in accordance with the terms of the TUPE Regulations. They were also issued with new terms and conditions of employment. The significant feature of these was that they excluded any reference to the terms of the Collective Agreement and, of course, did not contain the enhanced redundancy terms.
15. The employees, through their Union, lodged formal grievances on 6 October in respect of this change in terms and conditions. Before the Tribunal, it was argued that these fresh terms had replaced the original terms. The Tribunal found that such changes, effected by virtue of the transfer of the undertaking, would be a nullity and Mr Roy sensibly does not seek to appeal that part of the decision.
16. The Tribunal analysed a number different issues which it had identified as being the matters it needed to address:

(1) First, was the Collective Agreement effective and in force in September 2004?

(2) Second, had the terms of the Agreement been incorporated into the terms and conditions of all the employees, including salaried staff?

(3) Thirdly, were the terms varied by the issuing of new terms and conditions by the

Appellants in September 2004?

(4) Fourth - but this is really determined by the answer to the first three questions - were the claimants entitled to benefit from the enhanced redundancy provisions?

As we have said, the third issue is no longer relevant, so we focus on the first two issues.

17. The Tribunal reached a clear conclusion that the Collective Agreement was still in force in September 2004. They held that the parties had by their conduct kept it in force. Agreements had been regularly and consistently applied for a long period, and the Tribunal said that they were "in no doubt" that local management, officials and employees from 2002 to 2004:

"continued to operate in the belief that there was a continuing collective agreement to defining their relationship and obligations towards each other."

18. They rejected the Appellant's submission that the relationship had continued merely as an aspect of good industrial relations and was not referable to that Agreement. It followed that because the Collective Agreement continued in force, then the contractual terms continued in force. Secondly, and in any event, the Tribunal held that even if the Agreement had come to an end, nonetheless the terms for the weekly paid employees had continued to be incorporated into their contracts of employment and those contractual rights were not affected by the termination of the Collective Agreement.
19. As to the position of salaried staff, the Tribunal recognised that they were in a different position because of the absence of any express contractual term incorporating terms from the Collective Agreement. However, they noted, first, that the Collective Agreement itself ostensibly applied to all employees (salaried and non-salaried staff alike) and that this was the view of management. Second, there was evidence that the Agreement had, in practice, been applied over the years to the salaried staff in precisely the same way as to other staff.
20. It was not disputed that the terms of the Agreement were sufficiently precise to be capable of being incorporated into the contract as contractual terms and, in the circumstances, the Tribunal was satisfied that the enhanced rights were contractually conferred on all these employees.

The Grounds of Appeal

21. Essentially, the employers seek to re-run the grounds that were advanced before the Employment Tribunal. They contend that the Collective Agreement must have come to an end, because that is what it said. The union never sought to give notice to vary the Agreement in the manner envisaged by it. In the circumstances, the rights could not exist in the contract of employment independently of the Collective Agreement. The fact that the employers continued to act in all ways as if the Agreement were in force was entirely consistent with the employer acting in accordance with good industrial relations practice. For example, the recognition of the trade union, the continued negotiations with it and the recognition of representation rights, was something a good employer would do quite independently of any Collective Agreement. The practice did not justify an inference that the Collective Agreement had continued.
22. Second, they submitted that in any event the monthly paid staff never did have the benefit of these terms because their contract made no reference to the Collective Agreement. Mr Roy accepted that the Tribunal could in principle properly find that there was an established practice which had resulted in the terms being incorporated, but he submitted that the Tribunal had not expressed its reasons in that way and this Tribunal ought not to infer that this was what it had found.

The Law

23. It is necessary to summarise the basic legal principles applicable in this area. We think in the circumstances of this case it is sufficient to refer to two of the authorities which were drawn to our attention. The first is the decision of Hobhouse J (as he then was) in Alexander and Others v Standard Telephones & Cables Ltd [1991] IRLR 286. In that case, the plaintiffs were eight union members employed as production workers. Their statement of terms of employment specified that:

"basic terms and conditions of your employment by this company are in accordance with and subject to the provisions of the Collective Agreement negotiated at plant level with the union."

That agreement included a redundancy procedure, which provided that

"in the event of compulsory redundancy, selection will be made on the basis of service within the group."

24. The employees contended that the procedures had been incorporated into their individual contracts of employment and also that they effectively required a 'last in, first out' application of redundancy selection. The employers contended that they were not so incorporated and that in any event the procedures permitted management to retain workers whose skills and flexibility were best suited in the circumstances. The Court held that the procedures in the circumstances of that case had not been incorporated and indeed were not appropriate for incorporation into the contract of employment, in part because they were located in the procedural section, most of which was plainly only intended to regulate matters between the employers and the employee. In addition, it was held that the provision did not in any event have the meaning attributed to it by the employees.
25. In the course of giving judgment, Hobhouse LJ analysed the relationship between Collective Agreements and individual contracts of employment. He referred, amongst other cases, to National Coal Board v National Union of Mineworkers [1986] IRLR 439, Marley v Forward Trust Group Ltd [1986] IRLR 361, and a case to which we will return below, Robertson and Jackson v British Gas Corporation [1983] IRLR 302. He summarised the effect of these decisions as follows:

"The principles to be applied can therefore be summarised. The relevant contract is that between the individual employee and his employer; it is the contractual intention of those two parties which must be ascertained. In so far as there is no such document or that document is not complete or conclusive, their contractual intention has to be ascertained by inference from the other available material including collective agreements. The fact that another document is not itself contractual does not prevent it from being incorporated into the contract if that intention is shown as between the employer and the individual employee. Where a document is expressly incorporated by general words it is still necessary to consider, in conjunction with the words of incorporation, whether any particular part of that document is apt to be a term of the contract; if it is inapt, the correct construction of the contract may be that it is not a term of the contract. Where it is not a case of express incorporation, but a matter of inferring the contractual intent, the character of the document and the relevant part of it and whether it is apt to form part of the individual contract is central to the decision whether or not the inference should be drawn."

26. The second case to which we make reference is the Robertson case, which was considered by Hobhouse J in the Alexander case. In that case, two employees contended that they were entitled to the benefit of a certain bonus scheme. Their original letter of employment stipulated that the incentive bonus scheme conditions would apply to their work. They were also given a written statement of terms and conditions which stated that the provisions of the Collective Agreement applied to them and that any payments which might be due in respect of incentive bonuses "will be calculated in accordance with the rules of the scheme in force at the time." The Collective scheme itself was not legally binding as between the parties, and the employer gave notice to the union terminating the bonus scheme on 31 December 1981. No fresh bonus scheme was entered into. The employees contended that their right to the bonus scheme continued and they brought an action in the county court to recover wages.
27. The employer's case was that the contractual right had come to an end with the Collective Agreement. The county court found in favour of the employees and the employer appealed. The Court of Appeal dismissed the appeal. They held that both the letter and, indeed, the statutory statement of terms had the effect of incorporating the terms of the Collective Agreement into the individual contract and it mattered not thereafter that the Collective Agreement was terminated.
28. Ackner LJ analysed the position in the following way. He referred to a submission from Counsel for the employer, Mr Howard, that the statement made it clear that if there was no Collective Agreement in force then no bonus was payable, and he continued as follows:

"Mr Howard's submission is that that statement makes it quite clear if there is not in force at the time a bonus scheme then no bonus s payable.

I refer to the words in the contract itself first because it seems to me that prima facie the best evidence of what are the terms of a contract, where there is written evidence of it, is to be found in the writing. I read the words which I have quoted from the letter of October 19, 1970, as clearly laying down as a contractual obligation that there be an incentive bonus for the job. One then has to inquire where are the terms and conditions of that incentive bonus to be found. It is common ground that one goes to the collective agreement made between the employer and the trade union. As at the commencement of this employment which began a good deal earlier than the date of this letter there was a collective scheme in existence from which one could see quite clearly what was the bonus to be paid in the circumstances which were relevant to this employment; and therefore, when this employment began, be it in 1963 or taking the date of the new classification, October 1970, there was a collective scheme which provided the bonus which was to be paid, if the employee qualified, under this contract. There was thus, in my judgment, imported expressly into the contract an obligation to pay that bonus.

From time to time the collective scheme modified the bonus which was payable, and when that occurred, in my judgment, that variation became a part of the employer's obligation to pay and the employee's obligation to accept in satisfaction. Thus the collective scheme provided the tariff which at the material time was the appropriate bonus. The contract did not, in my judgment, contemplate the absence of any bonus at all. The collective agreement could, as occurred in this case, be determined; but that did not determine the tariff which had been imported into the agreement, first when the agreement was originally made, and then altered as time went by by the consensual agreement between the trade union and the employer, it being implied in the contract that that variation should bind the parties to this contract of employment. It follows, in my judgment, that under the letter of October 19, 1970, that tariff could not be affected by the unilateral determination of the collective agreement; and accordingly, if that letter was to be the operative document in relation to the terms of the employment of the employees, the judge was wholly correct in giving judgment in their favour.

I turn to the document dated September 1, 1977, the statutory statement of terms. I do not take the view that the phrase "in accordance with the rules of the scheme in force at the time" is necessarily inconsistent with the vital words of the letter of October 19, 1970; I think it can be read in the way in which I have read and interpreted the letter of October 19, 1970."

Kerr LJ agreed and he summarised his conclusions in the following way:

"Turning to the two sets of contractual documents in this case, and without distinguishing between them, it seems to me to be clear that both of them were designed to operate in the context of some agreed collective scheme concerning bonus payments, with conditions (in the case of the first document) and rules in force (in the case of the second document), whose terms are to be treated as incorporated into the individual contracts evidenced by these documents. Both of them proceed on the basis that there will be an incentive bonus and that its amount and the terms governing it are to be found in an agreed collective scheme in force from time to time. Such an agreement was in force at the time when both these documents came into existence, and from time to time the terms of the scheme were thereafter varied by some further collective agreement between the trade union side and the employer's side. I agree with Mr Sedley's submission that, when the terms of the collective agreements were varied by consent between the two sides, then the new terms clearly became incorporated into the individual contracts of employment. But what does not follow, in my view, is that the contracts of the individual workmen can be varied by some unilateral variation or abrogation or withdrawal from the collective agreement by either side.

It is true that collective agreements such as those in the present case create no legally enforceable obligation between the trade union and the employers. Either side can withdraw. But their terms are in this case incorporated into the individual contracts of employment, and it is only if and when those terms are varied collectively by agreement that the individual contracts of employment will also be varied. If the collective scheme is not varied by agreement, but by some unilateral abrogation or withdrawal or variation to which the other side does not agree, then it seems to me that the individual contracts of employment remain unaffected. This is another way of saying that the terms of the individual contracts are in part to be found in the agreed collective agreements as they exist from time to time, and, if these cease to exist as collective agreements, then the terms, unless expressly varied between the individual and the employer, will remain as they were by reference to the last agreed collective agreement incorporated into the individual contracts."

29. This case demonstrates, it seems to us, that plainly terms may continue notwithstanding the termination of the Collective Agreement, and furthermore, as the observations of Ackner LJ made plain, the court would need strong evidence to infer that the parties to the individual contract would contemplate that the situation might arise where an important contractual term would be entirely absent from the contractual agreement.
30. It seems to us that the following principles can be gleaned from these cases. First, employees do not derive rights directly from the Collective Agreement. The parties to that agreement are the employer and the union, and (save possibly in very exceptional and limited circumstances) it is generally accepted that the union does not act as agent for its members.
31. Second, there is a presumption that the Collective Agreement is not intended to be legally enforceable. That is now contained in statute: see Section 179 of the Trade Union and Labour Relations Act 1992. However, the rights (and obligations) found in Collective Agreements can bind employer and employee by being incorporated into the individual's contract of employment. This is so even although the terms of the Collective Agreement itself are not legally binding as between the collected parties.
32. Third, that incorporation can operate either expressly, such as for the weekly operatives in this case, or by implication. In order to determine whether that has occurred, it is necessary to focus on the relationship between the employer and employee and not on the relationship between the employer and the trade union.
33. Fourth, not all terms typically found in a Collective Agreement will be incorporated. That is so, even where the contract of employment ostensibly incorporates all the terms from the Collective Agreement. The terms must, by their nature and character, be suitable to take effect as contractual terms. Some collective terms will not do so because, for example, they are too vague or aspirational, or because their purpose is solely to regulate the relationship between the collective parties.
34. Fifth, the terms of a Collective Agreement may continue to operate and bind the parties to the individual contract even when the Collective Agreement has been brought to an end, and indeed even after the employer has withdrawn recognition from the union. In each case it is necessary to construe the terms of the individual contract to determine whether the Collective Agreement continues to have that normative effect even after it has ceased to be in operation.
35. Sixth, there will be a very strong presumption that the parties to the individual contract will have intended that terms should continue to be derived from the Collective Agreement, even after that agreement has ceased to have effect, if the consequence of not so doing is that there would be no binding contractual terms at all.

Applying the law to the facts

36. We consider first the position of the workers who have contracts of employment which have expressly incorporated the terms from the Collective Agreement. The enhanced redundancy terms are clearly, in principle, suitable for incorporation into the individual contract and the Appellant does not contend to the contrary. It is common ground that if a Collective Agreement continued in force at the time when the employees were dismissed, then there would be no impediment of any kind to prevent the term applying. Mr Brown concedes that as a matter of construction of the Agreement it did come to an end after 2 years. In view of that concession, we do not say any more about the proper construction of that particular clause. We note that another explanation was given to the Tribunal as to why that date had been specified, but it was not urged before us, so we turn to the other grounds on which Mr Brown says that the terms continue to take effect.
37. First, he contends that the Tribunal were entitled to find that as a matter of fact the Collective Agreement was still in force at the material time. That was a finding which the Tribunal properly made. They inferred from the fact that the relationship between the collective parties did not change in any material way that the parties had acted at all times as though the Agreement continued. The employers, as we have indicated, contend that there is no room for that inference. They say that this continued dealing with the trade union was merely the application of good industrial relations practice.
38. But Mr Brown submits that in this case, such was the extent to which that Agreement continued to be given effect, and such was the wholesale and general assumption that it continued to have effect, that the Tribunal were fully entitled to conclude that the Agreement continued in force. He drew an analogy with fixed term contracts, where somebody continues to be employed after the effluxion of time. In those circumstances, the terms of the original contract will continue. Whether it is strictly analysed as the continuation of the same contract or whether it is a new contract but on the same terms as the original, does not matter. He says that that is precisely the situation here. It is quite unrealistic for the employers to say that the detailed continued application of the old Agreement could be seen simply as application of good industrial relations practice.
39. We agree with his submission. The Tribunal had plenty of evidence to justify its analysis that the behaviour of the parties from November 2002 demonstrated that a Collective Agreement was still in force. We would prefer it to be seen as a variation of the original agreement by conduct, continuing the original agreement, but nothing turns on whether it is seen in those terms or whether there is deemed to be a new Agreement on precisely the same basis. This does not mean, as Mr Roy at one stage submitted, that the courts are construing the terms of the contract by what happened after its formation. Rather, it is recognising that it is always open to the parties to vary the contract (or in this case the Collective Agreement) after it is has been made. Here, even if the Collective Agreement on its proper construction did envisage the agreement terminating after two years, the parties can by their conduct demonstrate an intention to waive that limitation and continue to respect and apply the agreement. That is what the Tribunal found occurred here and we consider they were fully entitled to reach that conclusion.
40. Strictly that is enough to determine the appeal, at least with respect to the weekly workers, but we also deal with an alternative way in which Mr Brown put his submission and which indeed was one of the ways in which the Tribunal found that the terms had been incorporated. So far, we have upheld the Tribunal's conclusion on the basis that the Collective Agreement did in fact continue. But the other argument advanced by Mr Brown is that strictly it does not matter whether it did or not, since the Tribunal was also correct to find that the terms continued to be incorporated into the contracts of employment even after the termination of the Collective Agreement.
41. We also agree with that alternative way of putting the case. As we have said, the Collective Agreement can continue to be the source of contractual terms well after the Collective Agreement has ended, as the Robertson case illustrates. There is nothing strange or unusual in that. If one focuses on the individual contract, there is, in our view, no difficulty in saying that the parties must have intended that individualised terms would continue to take effect even after the Collective Agreement had either run its course or been terminated by one of the parties. In our judgment, it could not sensibly have been envisaged that once the Collective Agreement had ceased, the individual contract would simply be an empty shell, bereft of any terms save for those minimum terms specified in the written statement. There is no reason in those circumstances why the relevant terms, including these enhanced redundancy rights, should not continue to take effect. This is especially so where they have for so long been part of the contracts of those who worked in this company. The notion that the individual parties would have understood that if the collective parties chose to set a time limit to the terms of a Collective Agreement then this would in turn have the effect of removing altogether the contractual rights which the employees had for so long enjoyed seems to us wholly unrealistic. It is not the real world in which employees and employers operate. They would not have intended, in other words, that the time limit found in the agreement should itself be incorporated into the contract of employment. Mr Roy is right to say that the Tribunal do not analyse the matter in quite that way, but we think that is essentially what they have found.
42. Of course, this does not mean that the substantive terms can never be changed to the detriment of the employees. The employees legally take the risk that the union might renegotiate an agreement which is to some extent to their detriment, such as giving up or reducing the benefit of enhanced rights, perhaps in return for greater job security. They cannot complain if the union negotiates such a term on their behalf, but that would be very exceptional indeed, and would occur in circumstances where the wider interests of the workforce were being protected. Such a variation would, in our view, be within the contemplation of the employer and employee. But they would not envisage that long established and important rights could be removed, as it were, by a side wind - in this case the fortuitous fact that a particular agreement provides an end date.
43. That is not to say either that there may not exceptionally be Collective Agreements which are intended to confer rights only for a limited period and will have that effect. For example, the collective parties may agree to provide special enhanced redundancy terms for a particular redundancy exercise. Obviously, the employees cannot claim the benefit of those terms at a later date, after the expiry of that agreement, and in connection with a wholly different redundancy strategy. There the right itself is limited from the beginning to take effect for a particular time and it is understood by all parties that it will end once the period has expired. That was plainly not what was in the mind of the individual parties here. They did not envisage that after two years the carefully negotiated terms, building on years of previous negotiations, would simply fall away.
44. We turn then to the position of salaried employees. As we have said, their position rests on a different analysis. The Tribunal concluded that they continued to have the benefit of the enhanced terms, essentially for two reasons, first because the Collective Agreement itself provided that the terms would apply to them, and second, because as a matter of practice, they had been applied.
45. We agree with Mr Roy as far as his criticism of the first reason is concerned. The fact that the parties have stated in the Collective Agreement that the intention is to bind a particular group of employees does not of itself confer any contractual rights on the employees, or any obligations on the employer. As we have emphasised, the question always is what the individual contract provides and not what the Collective Agreement provides. But, as we have said, the Tribunal did in this case go on to recognise that, in practice, the Agreements had been applied to all staff.
46. Mr Roy submits, and we see some force in this, that it is unsatisfactory for us to infer that the Tribunal has thereby concluded that the terms of the enhanced redundancy agreement have implicitly been incorporated into the contract of employment. They have not, in terms, analysed the matter as one where as a result of custom and practice over a period of years, the employees must now be deemed to have established those rights. But we think, given that that was what the facts established (and given that it is not contended that they were treated in any sense differently from the weekly paid employees, not at least from the date when they were first brought into the Collective Agreement, which was 1998) it would be unrealistic for us not to accept that that was essentially what the Tribunal were finding.
47. We have considered whether it would be appropriate to send this matter back to the Tribunal, to ask them whether that was indeed what they intended but we all of us think in truth there can only be one sensible answer that they would give in the light of what they have found. So while we accept Mr Roy's criticism of the lack of clarity in the decision on this point, we think that the substance of the matter is clear, and they were finding that, in practice, there had been no distinction drawn between the categories of worker and that the terms were to be applied across the board in the same way to all employees.
48. Accordingly, notwithstanding these attractive arguments of Mr Roy's, this appeal fails.